Special Education Appeals BSEA #00-1896
COMMONWEALTH OF MASSACHUSETTS
DEPARTMENT OF EDUCATION
SPECIAL EDUCATION APPEALS
RE: GREENFIELD PUBLIC SCHOOLS
This decision is issued pursuant to M.G.L. c.71B and 30A, 20 U.S.C. §1401 et seq ., 29 U.S.C. §794, and the regulations promulgated under those statutes. A hearing was held on June 1, 16, 20, 2000 and July 11, 2000 at the Catougno Court Reporting Office in Worcester, MA Education in Malden, MA. Those present for all or part of the proceeding were:
Buffy Dewey Advocate
Janet Pike Bothelo Speech/Language Pathologist; Floating Hospital
Lois Carra Nueropsychologist; Floating Hospital
Hedy Christenson Director; Eagle Mountain School
Fran Kelly Psychologist; Greenfield Public Schools
James W. Devine Principal; Federal St. School, Greenfield, MA
Sharon Murphy Jones Special Education Teacher/Assistant Principal,
Federal St. School, Greenfield, MA
Kathleen M. LeBreck Grade 1 Teacher; Greenfield Public Schools
Marianne Harcourt Grade 2 Teacher; Greenfield Public Schools
Guy Silvester Special Education Director; Greenfield Public Schools
Carol Jacobs Director of Teaching, Learning and Accountability;
Greenfield Public Schools
Marilyn Schmidt, Esq. Attorney for the Parents
Peter Smith, Esq. Attorney for Greenfield Public Schools
Joan D. Beron Hearing Officer, BSEA
The official record of the hearing consists of Joint Exhibits marked P1-46 and 14+ hours of recorded oral testimony. The record closed on August 4, 2000 when written closing arguments were received from both parties.1
I. Can Greenfield’s proposed Individualized Educational Plan (IEP) for the 1999-2000 school year (SY), designating a 502.4 inclusion and pull-out prototype at the Federal Street Elementary School, be implemented to assure Student’s maximum possible educational development within the least restrictive educational environment?2
II. If not, is the Eagle Mountain School, a private non-766 approved day school, offer Student a FAPE in the least restrictive environment?
III. If so, are Parents entitled to tuition reimbursement and reimbursement for private speech/language therapy incurred as a result of their unilateral placement of Student at Eagle Mountain?
Student is a second grade student diagnosed with Dyslexia and Attention Deficit Hyperactivity Disorder (ADHD). As a result, he is disorganized, has trouble following directions, has word retrieval problems and trouble understanding social cues in language. Student attended the Federal Street School in first grade and did not get special education services because Greenfield put them on “hold” pending completion of a Title I Reading Recovery program. As a result, Student suffered from low self-esteem and behavior problems in school and at home. Student was independently evaluated at the Floating Hospital in late Spring 2000. The evaluators recommended a substantially separate language-based program. Greenfield told Parents that they did not have a substantially separate language-based program; therefore Parents unilaterally enrolled Student in Eagle Mountain School in Greenfield, MA. Even though Eagle Mountain is not approved as a special education placement, it is appropriate because it offers language-based programming with others who have similar special needs and can be supplemented with private speech therapy. As such, they should receive reimbursement for the Eagle Mountain program and reimbursement for private speech therapy for the 1999-2000 SY.
The Greenfield Public Schools (Greenfield) agree that Student has Dyslexia and ADHD. They also agree with the recommendations of the independent evaluators at the Floating Hospital but maintain that Student has made progress in first grade, and if given the opportunity to implement their own recommendations and the recommendations of the independent evaluators, Greenfield would have been able to provide an appropriate program for Student which would maximize his development in the least restrictive environment. Eagle Mountain is too restrictive for Student, it does not provide the speech therapy and behavioral services Student requires, does not provide an appropriate peer group for Student, does not follow an appropriate curriculum in accordance with the Massachusetts frameworks and may not provide appropriate language programming. As such, reimbursement should be Denied.
PROFILE OF THE STUDENT/EDUCATIONAL HISTORY
1. Student (DOB 7/22/88), currently a Second grader at the Eagle Mountain School, lives in Greenfield, MA with his parents and two older sisters. His mother is a nurse at the Franklin Medical Center, a part of Bay State Medical Center. His father is an accountant there (J23, Mother). Both Parents and the School staff describe Student as a sweet and affectionate child who tries hard to succeed (Mother, LeBreck, Murphy-Jones). Mother knew Sharon Murphy-Jones, a special education teacher at the Federal Street School, on a personal basis and asked Ms. Murphy-Jones in May 1997 to evaluate Student when he failed his Kindergarten screening at the Holy Trinity School (Mother, Murphy-Jones, J3, J4). He was evaluated on June 4, 1997. At that time he had a poor attention span, did not initiate conversation and often spoke in phrases instead of sentences (J3). Ms. Murphy-Jones’ testing showed that Student displayed visual retention deficits and retrieval problems. She recommended visual/auditory pairing of material, shortened work times, frequent check-ins and earning of rewards (J3). She also recommended that Student receive another educational evaluation and a psychological evaluation in six months to determine if Student had any type of a learning disability (J3, Murphy-Jones).
2. Student attended Kindergarten at the Holy Trinity School. During Kindergarten he was making some progress but because Student was a “young five” his Parents opted to wait a few months before making any decisions regarding special education services (J4, Mother, Murphy-Jones). Ms. Murphy-Jones conducted an educational reevaluation in February 1998. She reviewed the Connors and Devereaux behavior checklists prepared by the Kindergarten teacher on March 22, 1998 (J4-J5, J6). In class, Student was easily distracted, had difficulty organizing himself and difficulty completing tasks. During conversation, Student had difficulty getting out what he wanted to say, often losing his train of thought. His comments would frequently have nothing to do with the topic of conversation (Mother, J14). He had not acquired math and literacy readiness skills and would often forget things that he had previously shown that he had learned (J5, J6, J8, Mother, see J19). He often disturbed others in class by talking and fidgeting and was emotionally immature (J5, J6, Mother). The Connors and Devereaux scales showed elevated anxiety levels (J8, also see J7). During testing Student’s attention span continued to be short; however, improvement was noted from June 1997 (J6, Murphy-Jones). He also showed improvement in knowing his alphabet, colors and numbers, and dramatic improvement in fine-motor skills (J4). He continued to have deficits in visual memory skills. Ms. Murphy-Jones recommended that Student receive a psychological evaluation and continue to receive hand-on learning, repetition and overlearning strategies (J4).
3. On April 1, 1998, Student was evaluated by Dr. Len Huber, a certified school psychologist from the Greenfield Public Schools (J7, J32). Testing on the Wechsler Preschool and Primary Intelligence Scale of Intelligence (WPPSI-R) revealed a Performance IQ of 105 with strengths in visual memory and attention to strong problem solving skills when presented with familiar material; however, Student showed impulsivity in his responses when presented with unfamiliar material. Student achieved a Verbal WPPSI-R IQ score of 75 with significant deficiencies in verbal reasoning and processing with weaknesses in analytic and sequential processing. He also displayed significant avoidance behavior during verbal tasks that were difficult for him. Dr. Huber noted that Student had the perceptual comprehension to see that many of his classmates had an easier time reading and writing than he which put him at risk for reduced self-esteem (J7). Dr. Huber recommended visual/verbal pairing of information, development of visualization problem solving techniques, contextual cuing, frequent check-ins, modified reading, writing and spelling requirements, candid and consistent acknowledgment of his learning style and a speech/language evaluation to assess his need for therapy (J7).
4. Student’s initial TEAM meeting was conducted on April 1, 1998 (J31). The TEAM was continued so that both speech and language and neuropsychological evaluations could be completed prior to developing an IEP (Murphy-Jones).
5. The speech/language assessment was conducted by Laura Anderson, a Massachusetts and ASHA certified speech/language pathologist from the Greenfield Public Schools (J14, J32, J38). At the time of the evaluation Ms. Anderson had been a speech-language pathologist for twenty-one years (J38). She assessed his receptive language skills using the Test of Language Development-Primary (TOLD) and the Peabody Picture Vocabulary Test (PPVT Form IIIA). Expressive language skills were assessed using the TOLD and the Expressive One-Word Picture Vocabulary Test (J14). Student displayed above average skills in word discrimination and low average to average receptive vocabulary, syntax and morphology. He also showed below average ability in relational vocabulary skills during sentence imitation tasks, consistently substituting, omitting or adding words that were syntactically incorrect. Student refused to define any words in the oral definition subtest of the TOLD even with praise and coaxing. Although Student initiated conversation and displayed good turn taking skills, he had difficulty with topic maintenance (J14). Ms. Anderson diagnosed Student with a mild receptive and expressive language delay in the areas of categorization, auditory memory and pragmatics but was unclear as to what extent Student’s avoidance behavior may have affected test results (J14, J38).
6. Per the recommendation of Dr. Huber, Student was seen for a neuropsychological evaluation by Dr. Dufresne. The testing occurred on June 22, 1998, (Mother, Murphy-Jones, J15, J38). During cognitive testing, Student required a significant amount of verbal encouragement to persist at the requested tasks. Although he was generally cooperative and compliant for the initial part of the sessions, as time progressed, he withdrew or avoided tasks that were challenging. He refused to take one subtest. He showed appropriate conversation skills and was able to recall specific test instructions to perform an activity from one session to the next (J15). Like Dr. Huber, Dr. Dufresne found that Student could integrate and analyze complex information and could receive and discriminate simple auditory, visual and tactile information (J15, compare J15, J7). However, when presented with complex motor activities (writing, miming), Student had difficulty maintaining coordination and performing skilled movements (J15). His global cognitive scores were in the average range; however, his sequential processing scores were twenty-one points lower than simultaneous processing calculations (J15). During language tasks he had clear difficulty organizing step-by-step solutions to functional problems (J-15, compare J15-J13). However, when given visual and verbal prompts and modeling, Student was able to complete the task (J15). Student also showed pervasive problems sustaining attention over time. When presented with serial information Student tended to recall only the most recently presented item. Prior items were lost or confused with words of similar meaning (J15). Student was able to perform within age expectations on memory tasks that were modeled or paired auditorily and visually (J15). During psychosocial testing, Student showed an adequate sense of self and reported that he had friends he liked and got along with; however, like Dr. Huber, Dr. Dufresne found that Student did worry about his performance and functioned on an impulsive level to avoid stress (J15, compare J15, J7). Dr. Dufresne diagnosed Student with a learning disability and ADHD, and like Dr. Huber and Sharon Murphy-Jones, recommended verbal/visual pairing, modeling and reduced motor and verbal output expectations (J15, compare J15, J7, Murphy-Jones). He also recommended special education consultation around effective modifications and consultation between the classroom teacher and the school psychologist to develop activities to encourage a broader variety of coping skills (J15). In addition, Dr. Dufresne recommended participation in a supplemental corrective reading program and parent consultation with the pediatrician regarding whether Student should receive medication (J15, Murphy-Jones).
7. At the end of Kindergarten at Holy Trinity, Student still did not recognize the alphabet, associate sounds with letters or know his beginning sounds. Social and behavioral skills and work habits showed no improvement during his Kindergarten year (J19, Mother).
8. A TEAM meeting was held on August 27, 1998 to review Dr. Dufresne’s report and develop an Individualized Educational Plan (IEP) for the Student’s first grade year (SY 1999-2000). Parents were not sure if Student should attend the Federal Street School. They did make the decision to place Student there the day before school started. Student entered Ms. LeBreck’s first grade classroom in September 2000 (Mother). The TEAM recommended a 502.2 prototype incorporating multimodal presentations, output modifications, special education and psychological consultation for fifteen minutes 2x’s per month, direct speech/language services for thirty minutes twice a week and special education support for 45 minutes three times per week to address expressive and receptive language and auditory processing skills. The Team also recommended participation in the Reading Recovery program for thirty minutes, five times per week (J1, Mother, Murphy-Jones).
9. The Reading Recovery Program is a Title I regular education reading program (Murphy-Jones, J31, J1). It is often recommended because there has been success with nondisabled children in attaining early literacy skills. It is not unusual to use the program with children with language-based learning disabilities (Murphy-Jones). Reading Recovery is usually a twenty-week program. The strategies used in Reading Recovery conflict with literacy strategies. Therefore, it is policy that while a student is in Reading Recovery, no alternative reading and writing strategies are employed until the child is given the benefit of the Reading Recovery service (Murphy-Jones). However, there is nothing in the Reading Recovery policy that prohibits other services such as the speech/language services or consultation, psychological services or consultation class support while Reading Recovery is in process; Id . The Reading Recovery program was discussed at the August 27, 2000 TEAM meeting (Mother, Murphy-Jones). Parents understood the Reading Recovery policy to mean that if Student was in Reading Recovery, no other services could be provided (Mother). The TEAM agreed to put the special education and related services enumerated in the IEP “on hold” until Douglas completed the Reading Recovery program that he began in early September (Mother).
10. Parents received an IEP at the end of October 1998. They did not sign it because the IEP contained the wrong address and wrong school designation (Murphy-Jones). Ms. Murphy-Jones did not advise Mother not to sign the IEP but also did not tell her that she could sign the IEP in part (Murphy-Jones, Mother). The corrections were made in early November 1999 (Mother). Upon receipt of the revised IEP, Parents and School had discussions regarding a communication notebook to provide carryover between home and school (Mother). On January 7, 1999, Greenfield signed and sent the IEP with a meeting date of August 27, 1998. The IEP indicated that this was an initial evaluation with a TEAM meeting date of August 27, 1998 and designated a time period from December 1, 1998-June 1, 1999 (J1). This IEP called for a 502.2 program recommended by the TEAM (Murphy-Jones, Mother, see Finding 8 supra) . Both Parents accepted the IEP in full on January 27, 2000 (J1).
11. The IEP called for psychological and educational consultation services for 15 minutes’ 2x’s a month, direct speech language therapy for thirty minutes two time’s weekly, and academic special education services for three 45- minute sessions per week (J1). The direct services for Student were not provided in September because there was not an accepted IEP (Murphy-Jones). Dr. Huber provided Ms. LeBreck with the consultation for Student and for many other students in the classroom who temporarily resided at a homeless shelter across the street (Murphy-Jones, LeBreck). However, he only called Parents when Student was having a problem (Mother). In September 1999, Student would often tap his finger on the desk, made noises and had trouble following the routine of the class (LeBreck). He would often be picked for groups and other children would want to talk and sit next to him; however, he had trouble communicating with them (LeBreck). He would often tell the teacher that he couldn’t do an assignment or did not know what to do and sulked or was sad in class (LeBreck). Student also had trouble completing his homework without adult supervision often complaining that it was too hard (Mother). At home he continued to have problems being understood and could not understand social cues during games (Mother). He often relied on his sisters to help him communicate. The family was stressed because his sisters were embarrassed to be seen with Student (Mother).
12. At school Student had trouble organizing himself. He often could not find anything in his desk and could not do an assignment which called for coloring with crayons because he had lost them (Mother). When Mother talked to Ms. LeBreck about this in October 1998, she was told that it was Student’s responsibility to clean up after his assignments (Mother). Mother asserts that when she asked the teacher if there were any good role models for Student for socialization, Ms. LeBreck said that there weren’t any. Ms. LeBreck asserts that she gave names of students that would be good role models for Student (LeBreck). She also encouraged Parent to have Student participate in cub scouts because her children had done this and had a positive experience (LeBreck). At or around that time (October 1998) Mother told the teacher that Student was on an IEP. She was told by the teacher that she did not know Student was on an IEP (Mother). Mother talked to Sharon Murphy Jones about Student’s problems with disorganization. After talking to Ms. Murphy Jones Student’s supplies were put on a shelf on a bookcase and he was given visual cues to keep him organized (Mother, Murphy-Jones). Student’s organizational skills improved (Mother).
13. Because the IEP was not signed until January 27, 1999, speech/language therapy did not begin until February 2000 (Murphy-Jones, see J38). Therapy was provided twice weekly, with one individual session and one small group session with Ms. Anderson providing ongoing consultation to Ms. LeBreck (J38). Parent often did not know what the speech therapist was doing. She did not regularly communicate with the therapist or with the teacher about this (Mother).
14. During late Winter or early Spring, Parent received a call that Student was disruptive in Health Class. Mother talked to the Health teacher about Student’s behavior. The Health teacher was not aware that he was a special education student (Mother). Mother observed him in Health class. She observed that he at times was not paying attention but also noted that he did raise his hand on at least one occasion to answer a question (Mother). Mother did tell the Speech therapist about this incident and Ms. Anderson did observe Student in Health. She also provided consultation to the Health Teacher (J38).
15. During February or March 1999, Parents looked at the Greenfield Center School, a private school in Greenfield. They chose this school because their older daughter attended there. Mother told Ms. LeBreck that Student was applying there and believed that Ms. LeBreck told her that she prayed he got in (Mother). Ms. LeBreck believed that she told Mother that if you wanted him to go there I hope he gets in (Le Breck). However, Ms. LeBreck asserts that she did not tell Mother that she hoped or prayed that he would be accepted to this school (Le Breck). Student’s application was rejected because they had too many boys, did not know how to deal with auditory processing problems and had not speech/language pathologist (Mother).
16. In March 1999, Dr. Huber contacted Parents to tell them that Student had kicked a child in the stomach and therefore Student would sit out for two recesses. During recess, four adults were supervising the kindergarten class and the three first grade classes (LeBreck). At this time Student had started to play with more children on the playground; however, due to misreading of social cues, would often need assistance in his interaction with them. He told Parents that he did not want to go to school. Although he was not harmed by other students, Student did tell his Mother that he was afraid that bullies would beat him up (Mother). Mother began observing Student banging his head and throwing himself on the floor. On one occasion Student said, “I just want to die, I’m stupid, that he did not know anything and did not have any friends.” (Mother). He began wetting at night and was afraid to sleep in his bed (Mother). Parents did not tell Greenfield about the head banging incident or the bed-wetting or any issues of self esteem (Mother, Murphy-Jones). He had no abscesses during that term in school (J20). Parents also did not take him to counseling ( see J23, J35, Mother). Student was on a behavior plan where if Student were having trouble an adult would intervene to ask each student what they perceived and would facilitate interaction (LeBreck). Parents believed that the incident occurred because the behavior management was not being implemented or because there was no supervision on the playground (Mother). After this incident there was five adults supervising, as well as Dr. Huber supervising once per week (LeBreck, also see Mother). There were no other incidents on the playground (LeBreck).
17. In March 1999, Parents scheduled an independent evaluation of Student at Tufts New England Medical Center (Tufts). On March 24, 1999, Parents requested that Greenfield fund this evaluation in the following areas: academic, speech and language, occupational therapy, neurological and neuropsychological (J25). They also requested immediate approval and a letter of authorization by April 1, 2000 (J25). The Special Education Director authorized the evaluation on March 26, 2000 (J26).
18. On April 19, 1999, Mother began an intake process at Franklin Clinical Associates to have Student begin psychological treatment. At that time Student was taking 5 mg of Ritalin to address attention issues. Parents decided to wait to alter medication and/or provide treatment until after Student was seen at Tufts for his evaluation (Mother).
19. On May 12, 1999, Student’s first grade classroom teacher, Kathy LaBreck, completed a twelve (12) page ANSER System School Questionnaire as part of the Tufts New England independent evaluation. (J45). Ms. LaBreck stated, “[Student] had a difficult time with reading. He has a hard time retelling a story or incident. He does not see another perspective. He tends to ‘get stuck’ on an idea. He does well with manipulatives and concrete ideas . . .” However, she also reported”: He consistently demonstrated the following age appropriate academic skills: reading aloud fast enough; reading aloud with appropriate intonation; understanding what he reads; deriving new information from reading; identifying main ideas; deriving pleasure from reading; forming letters fast enough; writing in complete sentences; using good language in writing; expressing age/grade appropriate ideas in writing; punctuating; using good grammar in writing; using an appropriate pencil grip; understanding stories read to him; pronouncing new words; speaking intelligibly; remembering over a brief period; remembering to take things home; remembering what he is doing; doing art work; doing craft work; keeping track of time; submitting homework dependably; showing musical ability; revealing ability with computers; having a sense of humor; and displaying intellectual curiosity (J-45). She also informed Tufts that Student never demonstrated unpredictable behavior/school work, never showed highly inconsistent error patterns, never yawned or stretched excessively during class, never looked tired, never displayed unusual ideas or thoughts, never craved excitement, never freely associated, was never overactive, and never ignored punishment. Ms. LaBreck reported that the following behavioral concerns DID NOT APPLY to [Student]: seems sad much of the time, alternates between being too ‘down’ and too excited, often appears tired, complains of feeling ill, misses school often, has nervous twitches, makes odd sounds, shows certain repetitive habits, seems self-conscious, is alone much of the time, has been rejected/excluded by classmates, gets picked on by classmates, starts fights with peers, gets angry easily, breaks rules, is preoccupied with acting ‘cool’ and acts as if he doesn’t care about school performance (J45) Only occasionally did he have trouble staying alert or tune in and out such that it affected his school work (it never affected his peers). Ms. LaBreck commented that Student’s reading had improved, his addition and subtraction abilities had increased, he enjoyed using the computer and was very good at it. Ms. LaBreck also stated, “[Student]” has improved in self confidence.” “When we switched from addition to subtraction, it was difficult for [Student]… he often continued to add or put his head down and said, ‘I can’t.’ He is now successfully doing 70-80 out of 100 problems correctly.” “[Student] enjoys being with other children. They enjoy being with him. He gets along with most children in a social situation. In the classroom [Student] wants to do what is expected. He apologizes spontaneously to adults and most children when necessary. His behavior for the most part is appropriate.” “We have worked hard on trying to make Student want to be independent. We have been somewhat successful. As a teacher I have had to keep my expectations for him higher than he is willing to ‘put out.’ With encouragement, reassurance and firm consistency, [Student] has made significant progress this year and is now enjoying being in school.” (J45).
20. Student’s work samples show that when Student began first grade was only able to identify six (6) uppercase and nine (9) lowercase letters by name (J22, J38, LeBreck). He could only write random letters and his name (LeBreck). Student began the Reading Recovery program on September 2, 1998 (J22). The program was taught by a Master’s Level Reading specialist who worked with Student for an hour daily modifying the school activities, teaching alternate strategies, breaking down assignments into smaller tasks and meeting with the first grade teacher on a routine basis to ensure that she was doing frequent check-ins with Student, making sure he understood the assignment by having him verbalize the instructions, and modeling and restating the directions if the task was not understood (Murphy-Jones). Parents believe that Student liked Reading Recovery but as the words became more complicated he got more frustrated and often told Parent that Reading Recovery was too hard. He would often refuse to do his homework without parent involvement (Mother). Mother observed one Reading Recovery lesson and did not see a lot of nurturing in the lessons (Mother). By February 10, 1998, Student progressed from Level I (93%) to Level 8 (90%). In February 1999, he was reading simple sentences, was able to write many high frequency words and used letters to represent sounds (J-22). Although the program was supposed to end in February, Student remained in Reading Recovery until the end of the school year because he did not reach the Level 16 criteria for completion (Murphy-Jones). By June 11, 1999, Student reached Level 10 (90%) (Murphy-Jones). At that time he was reading more complex sentences, was self correcting, and by June 1999, was able to write a string of sentence with an average of a 7% error rate with appropriate sizing and spacing, “The boy is roding his boyk he can go vare vast on it” (The boy is riding his bike he can go very fast on it) (J-38, Murphy-Jones).
21. Student’s first grade report card shows that in the first term he could not yet read for meaning, spell or write independently and was just beginning to develop his writing skills (J20). September work samples show that Student was only able to write a string of random capital letters (with reversals) (J21). At the end of the second term (March 1999) through the end of the third term (June 1999) Student had shown steady progress in Reading, Language and Spelling (J20). By June, he was able to independently write a complete letter to his second grade teacher. Samples show that improvement is needed in punctuation and spelling (i.e., “silent e”) but that his writing showed much improved spelling, appropriate capitalization, size and spacing with independent content which stated, “I read with Mrs. Tenney. I learned how to write. I am good at painting. I made lots of friend’s” (J21). He was also able to complete a narrative (“Bumble the Bee”). When the teacher informed him that he needed an ending and offered to supply him with a couple of options, Student rejected those options and independently chose his own ending demonstrating correct sequencing and chronological order, spelling approximations, appropriate spacing, beginning capitals, some ending punctuation and sentence development (J21, LeBreck). Student’s end-of-the-year (fourth quarter) IEP Progress Report showed that he was working on all objectives in his IEP and had fully achieved the following:
Objective 4.1 Given modified written output, [Student] will complete tasks successfully;
Objective 4.2 Given paired auditory/visual presentation of information, [Student] will follow directions within the classroom;
Objective 5.1 [Student] will continue to increase his writing skills to include close-spelling approximations, appropriate spacing, complete thoughts, and good sequencing of information;
Objective 5.2 [Student’s] reading will continue to improve, given individual instruction and carry over of Reading Recovery strategies; and
Objective 5.3 Given priority words, [Student] will correctly spell these in his daily writing (J-16).
22. School records also show that Student’s handwriting progressed from a “Beginning to Develop” to “Steady Progress (J20). Social Studies and Science were graded as “Steady Progress” throughout the year (J20). Student showed satisfactory progress in Art and made excellent progress during the 3rd term, satisfactory progress in Music, showed improvement in Physical Education and after a grade of improvement needed during the 2nd term of Health, progressed back to a “satisfactory” grade at the third term (J20). During the second term Student had shown improvement in his listening and communication skills, his following of directions and ability to work without disturbing others (J20, LaBreck). By the third term, Student showed satisfactory effort in social skills, with excellent effort in seven areas, with one area being taking pride in his work (J20). By the end of the year Student would attempt a task before saying “I can’t” and could complete tasks 75% of the time without assistance. Student would often be picked for groups, and would talk with other children in the cafeteria and at the playground (LeBreck). In September, Student was only able to correctly write the numbers “1 ” through “13″; (J21). In March 1999, Student could count from 1-30, write the numbers 1-13 and count by 10’s to 90 (LeBreck). By June 1999, he could count to 90, write the numbers 1-30 and demonstrated proficiency in two-column double-digit addition and subtraction (J21, LeBreck). He showed satisfactory effort in organization skills, following directions and ability to cooperate with adults and peers (J20).
23. The TEAM reconvened on June 2, 1999. Ms. Murphy-Jones, Ms. LeBreck, Laura Anderson and Len Huber all felt that Student had made progress in all areas (Mother, Murphy-Jones, LeBreck). Parents also felt that Student had made progress; however, Student still had feelings of frustration and problems being understood, especially on the telephone, and was only Reading on Level 9 (Mother). The TEAM agreed to postpone the development of the IEP until the results of the Tufts evaluation were complete (Mother, Murphy-Jones, J31).
24. Student was seen at Tufts on June 23, 1999 and June 24, 1999 by Phoebe Adams for an educational evaluation, Janet Pike Bothelo for a speech/language evaluation and Lois Carra for a neuropsychological evaluation (J9, Pike-Bothelo, Carra). Parents were interviewed prior to the evaluation and asked to complete an Achenbach Child Behavior Checklist. Dr. Carra noted Parent’s concerns with Student’s low self-esteem, poor control over his emotions and feelings of worthlessness and inferiority when frustrated with his weaknesses. She also reviewed Ms. LeBreck’s questionnaire but did not include her statements that Student had improved in his self confidence, enjoyed being with other children and gets along with most children in a social situation, had made significant academic progress and is now enjoying being in school; compare (J9, J45, LeBreck, Carra).
25. Tufts also reviewed Student’s medical history and noted in the report that Student’s medical history was noted for a traumatic head injury at seven months, resulting in an occipital fracture but then crossed out this information without explanation ( see J9, Carra). Dr. Carra also reviewed the IEP’s and former neuropsychological reports and received an oral report from Student’s neurologist Dr. Stier (Carra). The teacher’s reports, Student’s report card and work samples were not reviewed nor was Greenfield consulted (Carra, Murphy-Jones, LeBreck). School was out of session at the time of the evaluation (Murphy-Jones). The independent evaluation did include Ms. LaBreck‘s statement regarding Student’s difficult time with reading and story retelling and tendency to get stuck on an idea and not see another perspective; however, the independent evaluators did not reference the remaining 11 2/3 of the 12 page teacher questionnaire which described Student as having consistent age appropriate academic skills in reading, writing receptive and expressive language, fine-motor development and articulation, improvement in remembering to take homework home and submitting homework dependably and his abilities in art, music and computer; compare J45, J9, LeBreck, Carra. The independent evaluators also did not review Student’s report card or work samples at the time of their evaluation (Carra, Murphy-Jones, see J9)3. Nor did they conduct an occupational therapy evaluation even though it was approved by Greenfield (Carra, J25). Although the accepted IEP referenced 30 minutes per week of psychological services, educational and psychological consultation and direct academic instruction for 45 minutes twice per week and speech/language instruction for thirty minutes twice per week, Tufts’ summary of services provided to [Student] in the first grade reads: “he leaves for one half hour per week for speech and language.” (Carra, compare J1, J9).
26. At the time of the independent evaluation Student was seven (7) years, one (1) month old and had just completed first grade. Neurological testing was assessed through the Stanford Binet (S-Binet IV). During neuropsychological testing, Student paid much better attention and showed more tolerance of visual tasks scoring in the average to high average range on the S-Binet IV. Student, even thought he obviously wanted to do well and put forth full effort, tended to resist language tasks or tasks which seemed complicated or challenging for him. He was often impulsive, grabbing for materials and lacked endurance, extremely low frustration tolerance, and low self-esteem(J9). Objective testing on the S-Binet IV revealed Average Composite Score of 100 scores in all components of Formal Intellect (Verbal Reasoning, Abstract/Visual Reasoning, Quantitative Reasoning, Short Term Memory, Comprehension, Absurdities). He showed strengths in visuomotor functioning (design copying, puzzle completion) scoring in the Average to High Average range. S-Binet IV Language scores also fell in the Average range for vocabulary and word list generation; however, when tasks involved language became more complex, he could not understand or follow directions or answer questions and often appeared to understand more than he could explain (J9). Student’s performance on memory tests showed average visual memory skills and average ability to repeat short amounts of information. He had difficulty repeating sentences but did score in the low average range; however, when he was presented with stories Student scored below average (J9). Student was able to complete tasks which required concentration; however, his disorganization prevented him from completing them in a timely manner (J9).
27. Dr. Adams assessed Student’s educational skills through the Word identification portion of the Woodcock Reading Mastery Tests-Form G (Woodcock), the Standardized Reading Inventory (SRA), the Rosner Test of Auditory Analysis (Rosner) and the Mathematics computation portion of the Wechsler Individual Achievement Test (WIAT) (J9). Dr. Adams noted that during educational testing Student was slow to establish rapport and had an inefficient and had an inflexible approach to tasks as well as problems with attention and focus. He was stressed during this portion of testing and required a long period of time to relax (Carra). Testing was shortened due to his difficulties with attention and persistence (J9). At the end of the first grade, Student scored in the 49th percentile and had a 1.6 grade equivalent (GE) in word identification on the Woodcock, knew the correct sequence of the alphabet and numbers, scored in the 61st percentile with a 1.9 GE in math computation on the WIAT and a second grade level in auditory skills (J9). Student scored at a preprimer instructional level in oral reading and comprehension on the SRA (J9). During reading tasks, Student displayed average phonemic awareness on isolation but difficulties in application, unstable word recognition and word analysis, retrieval problems, dysfluent and inaccurate reading of connected text at approximately preprimer level, inattentiveness during reading of connected text, difficulty organizing material for inferential reading, weaknesses in recall and formulation of oral responses to comprehension questions. His writing showed problems with letter size, spacing and formation, an awkward pencil grip, numerous letter and numeral reversals, great difficulty with spelling of basic sight words and difficulties with written language at the word and sentence level. In math, Student showed average computational skills but limited mastery and/or retrieval of math facts (J9).
28. Janet Pike-Bothelo, CCC-SLP, assessed Student’s speech/language skills through the Clinical Evaluation of Language Fundamentals-3 (CELF-3), Peabody Picture Vocabulary Test -III Form-A (PPVT-III), the Expressive Vocabulary Test (EVT) and the Test of Language Development Primary 3 (TOLD). Students’ pragmatic language abilities were also assessed as well as his articulation, voice and fluency4.
During testing, Student had difficulty remaining in his seat and handled objects within his reach. He was easily distracted by sights and sounds within and outside the testing area and required frequent repetition and redirection to a task. He did attempt all tasks when given tangible reinforcement (stickers) (J9). Student displayed low to below average scores in receptive vocabulary and below average performance in expressive vocabulary skills with responses indicative of organizational problems and recall and word retrieval difficulties (J9, see CELF-3, TOLD-3 scores, Pike-Bothelo). An analysis of errors on the Concepts and Directions subtest of the CELF-3 indicated difficulty with the recall of detail and with the concepts of location, sequence, condition and temporal relationships. He also displayed significant difficulty with his ability to interpret, recall and respond to questions of increased paragraph length especially those questions requiring recall and comprehension of factual and inferential material. He demonstrated below average skills in his ability to perceive synonyms and antonyms and words characterized by part-whole relationships. He did show high average ability in his knowledge of word structure rules but did experience low average to delayed abilities in sentence structures containing negation, modification, prepositional phrases, relative cues, subordinate clauses, indirect requests, compound structures, irregular plurals, subjective and reflexive pronouns, comparatives and superlatives (J9). Ms. Pike-Bothelo found Student’s pragmatic skills to be moderately disordered. In conversation, Student could introduce a topic and could answer the clinicians’ questions; however, he showed difficulty in switching to the listener role during conversation, switched topics frequently and assumed knowledge on the part of the listener often not being aware when a breakdown occurred. He was able to, on a limited basis, clarify upon specific request (J9).
29. After testing the Tufts evaluators concluded that Student had a significant learning disability and ADHD which greatly interfered with his ability to absorb, retain and use verbal information, and self esteem issues associated with his learning difficulties (J9, Carra, Pike-Bothelo). The Tufts Team recommended language-based programming whereby:
· communication/language goals are identified for all activities (including transitions and future events) by staff who can identify the children’s level of language comprehension and can modify the language they direct accordingly;
· instruction and class discussion is highly structured and organized using oral and visual methods (written outlines, graphic organizers, charts, schedules) to ease comprehension, with questioning, rephrasing, fill in the blank, multiple choice and cuing strategies to aide in expression;
· multistep/complex tasks are presented in stages or chunks, demands for written or lengthy work are decreased with organizational and study skills assistance, with build in of attention-grabbing or self monitoring devices (i.e. highlighter);
· teacher-directed instruction with teacher modeling language and performing the function of questioner; has continual encouragement of student responses to elicit elaboration; has activities that are structured to allow for interactions between children with limited language with staff or other students who provide good language and social models for language as communication (including initiating and responding to questions, use of language for making choices, problem-solving and social communication);
·incorporates repetition and review of previous material to ensure retention and to enable the student to relate previously learned material with new material.
· allows sufficient time to process the language directed (J9,Carra).
30. Tufts also recommended small group and individual language treatment three times weekly by a certified speech-language therapist, preferably through an inclusion model, and SLP consultation to ensure follow through and carryover in a variety of settings which would: improve Student’s knowledge and ability to use strategies for word retrieval; improve his ability to recall/comprehend factual detail and sequence of events and make inferences (predict events, determine main idea, problem solve); assist in focusing Student’s attention on important information through auditory mapping, visual organizational charts, breakdown and verbal development of story content; improve narrative organizational and sequencing abilities and attention to relevant detail through story/event completion exercises, listening and comprehension exercises (J9, Pike-Bothelo).
31. They also recommended that Student receive a reading and language arts program (such as Orton-Gillingham) to improve reading fluency and accuracy and develop a more solid foundation of reading skills,
and a highly structured writing program such as Project Read or Orton-Gillingham to develop note taking skills to increase fluency and complexity of sentence structure. They also recommended preferential seating is given for all board work, reduced copying and written expectations and use of workbooks/worksheets, proofreading checklists and visual cues to improve and accommodate writing and spelling difficulties (J9).
32. The Tufts Team also recommended bi-monthly meetings among team members to ensure continuity and follow through of strategy based instruction and specific techniques; daily check-in/check out time for 10-15 minutes at the beginning and end of each day to teach study skills and ensure that Student is prepared and organized and apprised of schedule changes (with 1:1 instruction if this time proves to be insufficient); daily check-in with a “point person” (i.e., school psychologist) to discuss interpersonal conflicts and academic difficulties and an occupational therapy evaluation including sensory integration assessment (J9, Carra, Pike-Bothelo).5
33. On July 15, 1999, Parents attended a feedback session at Tufts (Carra). Mother asserts that Dr. Carra informed her that Student required a substantially separate language-based program. Mother also asserts that Tufts told her to hire a private speech-language pathologist (Mother). Parents hired Carla Bernier, CCC-SLP who began providing services twice weekly beginning July 3, 1999 (J46).
34. On July 22, 29, 1999 and August 5, 1999, Student also received two sixty minute and one fifteen minute private speech-language therapy to increase phonetic awareness skills using a Lindamood-Bell type program (J10). On July 22, 1999 Student received a score of 39 on the Lindamood Auditory Conceptual Profile (LAC) an auditory discrimination score well below the minimum score of 61 recommended for the end of first grade and consistent with parental reports of difficulty in reading and spelling (J10). On the Phonological Awareness Profile Student showed overall mild-moderate deficits in rhyming, segmentation, isolating speech sounds, deletion, and blending (J11). He demonstrated no deficits in blending words and syllables into multisyllabic words. The SLP recommended 1:1 or small group therapy three times a week (J17). As of September 3, 1999, after six (6) one (1) hour sessions, Student displayed moderate phonological processing deficits with moderate-severe deficits at the phoneme level which directly impact on his reading decoding skills (J18, see also J19). The SLP recommended enrollment in a language-based classroom to encourage age appropriate expressive vocabulary and language (J18).
35. Mother had several conversations with Dr. Carra over the summer, including one over Labor Day weekend. Dr. Carra informed Mother that she was torn about where Student would go to school, that she was worried about placing him in a public school setting, had looked at Curtis Blake School and the White Oak School but that Student was too young for White Oak and Curtis Blake had no openings (Carra). Mother also told Dr. Carra that she had looked at Eagle Mountain, a private unapproved school recommended by her advocate Buffy Dewey (Mother, Carra). Dr. Carra told her to talk to Sharon Murphy-Jones and consider both public and private options (Carra).
36. Mother also had several conversations with Greenfield over the summer of 1999 calling Sharon Murphy Jones often at home. They discussed Tufts recommendations regarding a substantially separate language program. Ms. Murphy-Jones told Mother that Greenfield did not have a language based self-contained program but did have language-based programming. She told Mother that the TEAM would reconvene when they got the written report from Tufts and make a recommendation at that time (Murphy-Jones). They also talked about the Eagle Mountain School. Although it was in Greenfield, Ms. Murphy-Jones did not know any specifics about the program because it was not approved and no students from Greenfield had attended there (Murphy-Jones). She told Mother that if she wanted a special school considered for Student she would have to go through the TEAM process. Without that, Greenfield would not agree to pay (Murphy-Jones).
37. On August 4, 1999, Mother signed a Release granting permission for Hedy Christenson, Director of Eagle Mountain School, to communicate with Kathy LaBreck. (J39). During that month Mother completed an application for Student’s enrollment in Eagle Mountain.
38. The Parents received the Tufts evaluation on August 22nd or 23 rd , 1999. Ms. Murphy-Jones received it on August 24, 1999. The TEAM meeting was scheduled for September 9, 2000 (Mother, Murphy-Jones).
39. On September 2, 2000, the Special Education Director, Guy Silvester, and Francis Dufresne met with Parents at their request. The purpose of the meeting was to discuss the Tufts educational recommendations prior to the start of the school year. No other members of the TEAM were present (Mother, J27). Mr. Silvester and Parents talked about a language-classroom and a language-based curriculum in an inclusive classroom. Parents did not trust that Greenfield could implement the IEP because Ms. LeBreck did not know he had special needs until Mother told her in October of his first grade year (Mother, J27). As such, Parents did not believe that adequate communication existed with school staff or that Greenfield had or could consistently implement an educational plan (J27, Mother). Mr. Silvester and Parents discussed school choice. Mother believed that Student’s needs could only be met in a substantially separate language-based classroom and that he would experience more failures than successes in a general education curriculum (Mother, J27). Mother also did not think that Students (or any child’s) needs could be met in an inclusion classroom (Mother). She did not talk to Greenfield about these concerns (Mother).
40. On September 3, 1999, Parents tendered a check to Eagle Mountain School in the amount of five thousand and 00/100 ($5,000.00) dollars (J46).
41. In a letter to Mr. Silvester dated September 5, 1999, Parents told Greenfield that because there was no language-based curriculum at Federal Street School they were seeking placement at Eagle Mountain School ( see J27).
42. On September 6, 1999, Mother visited Ms. Harcourt’s second grade classroom for about an hour (Mother). Ms. Harcourt told her that she had reviewed the testing from Tufts and felt that she could handle Student. She pointed out Student’s proposed seat to Mother. Mother objected to the size of the class because it had 20-21 students. She objected to the seat because was “next to an autistic child [and] she didn’t know what was wrong with the boy.” (Mother).
43. The TEAM reconvened on September 9, 1999, to consider the Tufts’ evaluation (J31). At that time Student had already begun at the Eagle Mountain School (Christenson, Mother). Pursuant to the TEAM meeting, an IEP for the period 9/99 through 9/00 was developed and forwarded to Parents on September 20, 1999 (J28). The IEP noted that Student had a complex deficits and weaknesses and that Student required good role models to provide good language and social modeling (J28). The IEP included a lengthy and comprehensive Instructional Profile and mirrored all language-based recommendations contained in the Tufts evaluation except for a substantially-separate program (J2, Mother,Carra, Pike-Bothelo, compare J2, J9). The IEP contained sixteen goals, each with multiple objectives, in the following areas: psychological (self-acceptance, dealing with frustration, problem solving); phonemic awareness (to improve reading and spelling skills to age-appropriate levels), receptive and expressive language; word finding; expressive and pragmatic language; reading; written language; spelling; reading comprehension; writing-math; organization; and learning strategies. Consultation from the special education teacher (1hr./2x mo) Speech/language pathologist (1hr/2x wk), School Psychologist, (1hr/ 2x mo.), and Reading Specialist (Lindamood-Bell (1hr/2x wk) plus bi-monthly meetings to ensure a comprehensive and cohesive program were included in the proposed IEP.
44. Pursuant to the IEP, Student would receive daily special education minute language arts and math instruction in a small group within the inclusion classroom and a half hour of 1:1 special education academic instruction daily in a distraction free environment to address language arts, math, and organizational and learning strategies, with art, music and physical education, lunch, recess and snack in his second grade class (J2, J30). The proposed IEP also delineated approximately 145 minutes/day of the following direct pullout specialized services: language arts (5×30); 1:1 small group counseling (3×30); 1:1 small group speech/language (3×30); 1:1 reading (Lindamood-Bell) (5×45); and academics (5×30) (J2). Student would also meet with the paraprofessional for fifteen minutes after the end of the school day to review homework assignments and process any issues during the day (Murphy-Jones, see also J2). He would receive a modified discipline code which paired verbal and visual instruction for rules and consequences and would receive modifications for behavior which occurred due to attention difficulties (J2). Extended school year services were also recommended to prevent regression (J2).
45. Student began attending the Eagle Mountain School in August 1999 (Christenson but see Mother
start date September 9, 1999). The Eagle Mountain School is a private school housed in five small rooms in an older home in a quiet residential neighborhood in Greenfield, MA (Christenson, J38). It has been in existence since 1994, was approved as a private school in July 1995, and is due for renewal by Greenfield as a private school (Christenson, Jacobs). It is not 766 approved. Ms. Christenson did inquire about getting 766 approval but did decide not to pursue it because there were too many requirements and the process took too long (Christenson).
46. Hedy Christenson, Director of Eagle Mountain School, described her school as serving average to
above average students up to the age of fourteen who failed in other settings. At the time of the hearing, there were eleven (11) students enrolled at Eagle Mountain: three eight year olds; two 9 year olds; one 10 year old; one 11 year old; one 12 year old; two 13 year olds; one 14 year old and Student, age seven. Ms. Christenson does not anticipate the student population at Eagle Mountain to exceed 10-11 because “that’s all the building will hold” (Christenson). Four of the eleven students are at Eagle Mountain as a result of sole source approval from the Frontier Regional, South Hadley and Northampton school districts. None of the Students are from Greenfield (Christenson)6.
47. Eagle Mountain staff consists of two full-time teachers and three half-time teachers and the Director Hedy Christenson. Ms. Christenson teaches or supervises Student’s 1:1 reading tutorial, writing and science classes (J34). She also teaches social studies at the school to older students (Christenson). In the morning there are usually five staff and the ratio is 1:1 or 2:1; however, in the afternoon, there are only two teachers present. At that time the ratio is 5:1 or 6:1 (Christenson). Ms. Christenson received a B.A. degree in Elementary Education in 1962. She is certified in teaching children with Moderate Special Needs and also certified as a Consulting Teacher of Reading. Ms. Christenson has done some graduate study work in reading in the Fall of 1971 and graduate study in individual intelligence testing and creative writing during 1976-1978. Her resume shows twenty years of teaching expeience in regular education. Prior to opening the Eagle Mountain School, Ms. Christenson had five years experience in special education. Immediately prior to the opening of Eagle Mountain, Ms. Christenson was a tutor for four years for students for learning disabled students age 6-17 using Orton-Gillingham and Lindamood-Bell techniques (J36). She has received six hours of professional training in the “Seeing Stars” Lindamood-Bell spelling program in 1999 and six hours of professional development in the Lindamood-Bell symbol imagery and spelling program in 1998 (J36). She has no formal training in Orton-Gillingham or Project Read (Christenson).
48. Eagle Mountain’s five teachers are Barbara Lockhart, Nanci Darley, Susan Burkott, Deane French and Marie Zenick (Christenson, J36). There is a school psychologist who is not on staff but can be called when needed (Christenson). Barbara Lockhart has worked at Eagle Mountain since 1997 and currently teaches Social Studies to Student at Eagle Mountain from 2:00 p.m-2:45 p.m. (J34). She is certified as a Spanish Teacher for grades 5-12 (J36). Ms. Lockhart received two years of special education training at Westfield State College during 1986-1988 (J36). Her resume indicates that her certification is pending in Moderate Special Education; however, when Ms. Christenson was questioned about this, she indicated that she thought Ms. Lockhart was going to get certification in something but did not know what or when (Christenson). Ms. Lockhart’s resume indicates no elementary teaching experience and no teaching experience in Social Studies, see J36. Nanci Dailey is a writing teacher at Eagle Mountain. She has had some postgraduate work in Art and Writing but is uncertified (Christenson). Her teaching experience is in Art (J36). She does not teach Writing or Art to Student (J34). Susan Burkott is Student’s Science and Math teacher (J34). She has a BA in psychology and has taught as a substitute teacher since 1997 concentrating in high school Algebra. She is not certified (J36, Christenson). Deane French is Student’s Art teacher and is certified in Art (J36). Marie Zenick, newly hired, is uncertified and unlicensed in the United States (J-36). She was a speech/language pathologist in the United Kingdom concentrating her course work in fluency and voice. She has done some language work with preschool children in a clinical setting (J36). Although Ms. Christenson testified that they have a speech-language pathologist at Eagle Mountain, Ms. Zenick does not provide speech-language therapy (Christenson).
49. Eagle Mountain does not have a training budget for professional development (Christenson). However, Ms. Christenson meets with her staff every other week and informally as needed. Staff receive forty (40) hours of training in Lindamood-Bell, primarily “on-site” by Ms. Christenson (Christenson). Ms. Christenson has not sought or received any training in the state or local Curriculum Frameworks/Standards and has had no training in observing, analyzing, or evaluating teachers (Christenson).
50. The daily schedule for all students at Eagle Mountain School for the 1999-2000 school year consisted of a daily morning meeting from 8:15 a.m.-8:30 p.m. with all Students and teachers (J33, Christenson). All students receive Reading, Writing and/or Math instruction from 8:30 a.m.-10:20 a.m. (J33). The reading program at Eagle Hill is the Lindamood-Bell Auditory LIPS program (Christenson). After a twenty minute break, the students receive further reading, writing or math instruction from 10:40-12:30 a.m. followed by a 45 minute lunch break. They receive Science instruction from 1:15 p.m.-2:00 on Monday, Tuesday and Friday followed by Social Studies instruction on those days from 2:00 p.m.-2:45 p.m. On Wednesdays, the children receive a double block of Physical Education in the afternoon and receive a double block of Art during that time on Thursdays (J-33).
51. In order to meet its obligations under M.G.L. c. 76 §1,7 regarding the compulsory attendance of school age district residents, the Superintendent of Schools (or designee) evaluates the private schools within the district in order to determine if the instruction offered is substantially equal in thoroughness and efficiency to that available in the public schools. The School District does this by looking at the qualifications of the Headmaster and staff, the teacher/pupil ratio, the daily schedules and instructional hours in each grade, the curriculum offered at each grade level and pupil services including guidance, lunch and health programs (J43, Greenfield, Policy LBC). The School District also looks at whether the building meets health and safety codes and whether the school calendar complies with state instructional requirements or is equal in thoroughness and efficiency. Furthermore, if the private school is a recipient of local, state or federal funds or services that private school must submit a statement of nondiscrimination (J43). Once approved, the School Committee reviews the private school every five (5) years to ensure that the school continues to operate satisfactorily. If not approved, the School Committee will indicate the deficiencies to the private school and will grant them a period of time to correct them. The private school will then be reconsidered for approval after this information is received (Jacobs, J43).
52. Eagle Mountain is currently undergoing a five-year review by the Greenfield School Committee for reapproval as a private school. As part of her job as the Director of Teaching, Learning and Accountability,8 Ms. Carol Jacobs reviewed Eagle Mountain’s curriculum and matched it to the Massachusetts curriculum frameworks and Greenfield’s local standards (Jacobs). At the time of her review Ms. Jacobs did not know that Eagle Mountain was the subject of a special education appeal for this student (Jacobs). On November 22, 1999, Ms. Jacobs informed Greenfield’s Superintendent of Schools that the curriculum had strength in its breadth of content taught, but when compared to the Massachusetts curriculum frameworks, there appeared to be significant gaps. Although the Science curriculum had a strong life Science and Health focus, it introduced no concepts in physical, earth, and space domains; the Social Studies’ curriculum focused almost entirely on geography and American history and had no world history in the curriculum. Ms. Jacobs also noted that the writing curriculum was generic, and it appeared that students received less emphasis on writing genres and the use of the writing process than in Greenfield. Ms. Jacobs also expressed concerns about how Eagle Mountain students’ would be assessed on an ongoing basis. Although several diagnostic tests were administered, it was unclear as to how the staff would use the assessment tools to show that students had learned the content and were able to demonstrate their proficiency of the material (J-37, Jacobs).
53. On January 31, 2000, Hedy Christenson wrote to Greenfield’s Superintendent to clarify issues raised by Carol Jacobs (J37). Ms. Christenson attached eight (8) pages of documents to illustrate the specific content of her school’s curricula. The documentation revealed that no geology topics were taught during 1999; no physics topics were taught since 1997; no astronomy topics were taught since the fall of 1998; and no meteorology topics were taught since 1996. The curriculum was not written in measurable or student-centered objectives but simply listed in a topical fashion. Any differentiation based upon grade or age level was absent. No scope and sequence was evident. It appeared that all students used Let’s Write! : A Ready-to-Use-Activities Program to teach writing, no matter what their age or ability level. (J37). Although Ms. Christenson indicated that Students were given standardized tests in September and May and were daily evaluated through their 1:1 Lindamood Bell phoneme sequencing program, it remained unclear as to how the staff would use the assessment tools to show that student’s had learned the material ( see J37). Ms. Christenson invited members of the Greenfield staff to visit Eagle Mountain to see the curriculum being implemented (Christenson, J37).
54. Ms. Jacobs did a 2 ½ to three-hour morning site visit at Eagle Mountain during the Spring of 1999 (Jacobs). She was not told that Eagle Mountain was the subject of litigation for a special education appeal (Jacobs). During that time she met with Ms. Christenson and asked to see her assessments and curriculum materials in all subjects (Jacobs). She also looked at the work binders created for each child, viewed resource materials and observed eight children at Eagle Mountain (Jacobs). Ms. Christenson was not able to elaborate on her curriculum nor differentiate different curriculums for different grade levels (Jacobs). None of the students took the MCAS; Id . When Ms. Jacobs asked how she could ensure that students of different ages and different educational levels understood the content of the material, Ms. Christenson told her that the students would understand the content because they do a theme a year (Jacobs). Ms. Christenson also informed Ms. Jacobs that the school focused on the Lindamood-Bell reading program and used assessments that go with Lindamood-Bell (Jacobs). She observed four children of different ages working in a math textbook and three additional children working independently in a phonics notebook. Student was having 1:1 instruction at that time and was not observed by Ms. Jacobs (Christenson). The classrooms were small and cramped with piles of boxes stacked in the corners, had no manipulatives, globes or maps, had no library and only one computer with no Internet access (Jacobs). After meeting with Ms. Christenson and examining the curriculum, Ms. Jacobs determined that the world history and physical science remained lacking, none of the binders contained any research projects; it was difficult to determine what each individual child was doing in writing because each child used the same “Let’s Write” book and followed it in sequence and only one language arts’ program was used (Jacobs). She reported her findings to the Superintendent but provided no further correspondence to Eagle Mountain (Jacobs). Eagle Mountain is awaiting information regarding it has received reapproval as a private school (Christenson). Ms. Christenson believes that the facility will pass the health and building inspection. She can not remember what the Massachusetts Curriculum guidelines call for Grade 2 or other grades but feels that the required subjects are taught and as such will be approved as a private school (Christenson). Until told otherwise, Eagle Mountain is still reapproved as a private school (Jacobs, Christenson).
55. When Student began Eagle Mountain in August 1999 Ms. Christenson attempted to test him but “He wouldn’t do it” (Christenson). He had trouble getting engaged in school and was resistant to school in general (Mother, Christenson). During morning meeting, the staff had a hard time understanding what Student was saying. Whenever he heard his name mentioned, Student would believe that others were negatively talking about him and would walk out of the room (Christenson).
56. On October 1, 1999, the TEAM reconvened at the Federal St. School to review Student’s program (J31). Parents and Advocate believed that although the IEP was comprehensive it did not go far enough to address his needs. They felt that he was doing much better at Eagle Mountain (Mother, J31). They did not inform Greenfield about Student’s difficulty using the Lindamood-Bell program or his difficulty getting engaged in school (Mother). Greenfield told Parents that they had until October 20, 1999 to respond to the IEP (Mother, Murphy-Jones, J31). Parents rejected the IEP on October 20, 1999 (J31).
57. As the fall went on, Parents began to see growth in Student. He no longer called himself stupid instead saying that he was not very good at that. He showed affection to others and had some conversations on the phone with friends and family and could be more easily understood (Mother). Student currently draws, writes in cursive, reads every night and wrote a poem which was put in the Eagle Mountain newsletter. He is functioning scholastically on a first grade level (Mother, Christenson).
58. Student received a one-on-one daily tutorial for one hour with Hedy Christenson (J34, Christenson). When Student began Eagle Mountain, Ms. Christenson initially attempted to use the Lindamood-Bell Phoneme Sequencing Program (LIPS) (Christenson, J34). The LIPS program teaches students to become aware of mouth movements involved in making each sound by focusing on feeling. This motor feedback is an essential tool to aide in self-correcting of reading and spelling errors; Id. Student was unable to verbalize the mouth movements he felt even though he knew the labels of the various consonant sounds (J34, Christenson) He was switched to Orton-Gillingham after initial attempts with Lindamood were unsuccessful “due to [his] severe language learning disability (Christenson, J34).” Student had an initial resistance to the program but did settle into the structure of the program and worked diligently (J37). During his daily Orton-Gillingham tutorial, Student was introduced to or reviewed all consonant sounds, the short vowel sounds and the “oo, ee, ch, sh, th, and ck” sounds. He practiced reading word lists of phonetically regular single syllable words, built on his sight vocabulary of phonetically irregular words using flash cards and written word lists. His contextual reading was done using a phonetic workbook series Explore the Code 1 and 2. At midyear (January 2000), Ms. Christenson contacted Student’s private speech therapist Carla Bernier to enlist her expertise in helping Student with the vocabulary to describe the mouth movements used in the LIPS program. After this contact Student was able to verbalize the mouth movements he felt. As such, Ms. Christenson was able to begin instructions in the LIPS program and introduced various parts of the program to Student, phasing out Orton-Gillingham instruction until there was a complete switch from Orton-Gillingham to the Lindamood-Bell Phoneme Sequencing Program (Christenson, J34). According to Ms. Christenson, Student made excellent gains during the first term progressing from being a “non-reader” to “being able to decode complex simple syllables” (J34).
59. In September 1999, Student was initially resistant and had minimal writing skills; however, as the year went on, Student settled in and worked diligently on his writing lists, single nouns and verbs and was beginning to write sentences (Christenson, J34).
60. According to Susan Burkott, Douglas’ Mathematics teacher, Douglas did not understand the basic format of column equations. By midyear he was able to distinguish between addition and subtraction (J-34). In Science Student was an eager participant in the school’s organic garden. Ms. Burkott (also Student’s math teacher) noted that Student worked hard in the School’s study of the animal kingdom and put forth great effort in his work. During this class Students used life samples and made clay models of arthropods and arachnids using world maps, globes and student drawings in a world geography unit in Social Studies (J34). He is doing well in Art but still misses some oral directions (J37).
61. On March 3, 2000, Dr. Marnie Webster wrote a Child Psychiatry Consultation Note (J35). Dr. Webster is an Adult and Child Psychiatrist at Franklin Clinical Associates where both Parents work. She is also a friend of the family (Mother). Student was first seen for a psychiatric consultation on November 18, 1999. At that time Student was taking 5 mg of Ritalin once or twice daily (J35). Mother told Dr. Webster that during first grade they were concerned about Student’s slow progress, the ineffectiveness of medication for ADHD and his increasing emotional sensitivity, moodiness, crying and unhappiness about school and learning. They informed Dr. Webster that Student had feelings or worthlessness and said that he wanted to kill himself (Mother, J35). Student began seeing Dr. Stier for psychotherapy one time a week in September 1999. He stopped seeing her in mid-October because he didn’t need to go any more (Mother). Mother told Dr. Webster that he would not use the Lindamood-Bell reading program at school but still reported that Student had made remarkable progress at Eagle Mountain; that there had been a decrease in avoidant behaviors and that he was more willing to try new things (J35). However, she also reported that during February-March, 2000, Student was struggling emotionally, was overwhelmed and distraught at times, was having more difficulty handling frustration and was having intense episodes during which he cried, called himself stupid and on one occasion talked of suicide. Parents did not attribute these meltdowns with the Eagle Mountain program (Mother, J35). Student was switched from Ritalin to Adderal which greatly improved his mood and ability to comprehend and participate in experiences in and out of school (J35). He also began therapy with Deborah Stier (J35, Mother).
62. Dr. Webster did no testing nor did she interview Student, talk with Dr. Carra or anyone at Tufts (Carra, J35). She also did not contact Greenfield or Eagle Mountain or view either program ( see J35, Mother, Murphy-Jones, Christenson). She did see Student for monthly medication reviews. In her note on March 3, 2000, Dr. Webster opined that Student had clearly benefited from being at Eagle Mountain School and that serious depressive patterns that developed in the public school had been reversed. She stated that: “Ideally, the goal of mainstreaming children with special needs as much as possible is designed to meet their emotional and social needs (as well as to save money for other uses).” In [Students’] case, the benefits of being in a small, separate setting “far outweigh any negative complications” and that the recommendation for a substantially separate language-based class has been appropriate to meet Student’s emotional needs as well as his educational needs.” She also stated: “Clearly it is impossible to know how Student would have fared with the public school IEP instead of his current placement, but I doubt that he would have made as much progress or been as proud of himself”(J35). Dr. Webster recommended that Student complete the year at Eagle Mountain, continue in individual psychotherapy and medication management and that plans for the next school year be contingent upon the resolution of his adjustment disorder, which is likely to occur within the balance of this school year (J35).
63. March 3, 2000 was also the day that Dr. Lois Carra and Janet Pike-Bothelo observed Student’s program at the Eagle Mountain School and his proposed program at the Federal Street School (Carra, Pike-Bothelo, LeBreck, Murphy-Jones). Ms. Carra also reviewed Eagle Mountain’s testing. This testing showed that Student had no word attack skills, had delayed communication skills and difficulty in expressive and written language (Carra). They arrived at Eagle Mountain at lunchtime after observing the Federal Street program and then observed Student’s Social Studies class which ran from 2:00 p.m.-2:45 p.m. In the classroom was one teacher and five children, Student age seven, two eight year olds, one nine year old and one ten year old. That class, as well as the rest of the classes in the school, were small and had a lot of material packed in the room (Carra). They observed the last twenty minutes of this class (Carra). During that time the evaluators saw a lot of give-and-take discussion with teacher eye contact and modeling (Carra, Pike-Bothelo). The evaluators did not know the specifics of the other student’s profiles but they did seem to be working at a similar level (Carra). The pace of the class was fairly slow (Pike-Bothelo). Vocabulary was introduced along with fill-in-the blank techniques to aide in recall (Carra). In contrast to his demeanor during testing, Student appeared relaxed and participated frequently in the discussion; (Carra, Pike-Bothelo). During the times he needed to be refocused, the teacher was able to bring him back to the topic immediately (Carra).
64. Dr. Carra and Janet Pike-Bothelo then talked to Hedy Christenson. She informed them that Student had come along during the year but that whenever anyone pushed Student or asked him to do a verbal or written language task that he perceived to be hard, Student would refuse to do the task. Ms. Christenson informed the evaluators of an incident which occurred at Eagle Mountain School in February 2000. In Science, Student colored a cardinal blue. He was told to color it red. “Student couldn’t take it. He got very upset and couldn’t get off the subject… it lasted one hour.” She also informed the evaluators that they had tried the Lindamood-Bell LIPS program and was initially unsuccessful because it required too much verbalization. She indicated that Student was beginning to relax in tutorials. Both evaluators examined the curriculum. They found that the reading and writing comprehension was not exactly what they had recommended and that Student would be disadvantaged when he was ready to go back to a public school setting (Carra, Pike-Bothelo). They also admitted that Eagle Mountain did not provide the fifteen minute check-in and check-out for organization and that there were no speech/language therapy services or psychological services or consultation was provided as recommended; however, they did find language-based programming in the class they saw and that Student did benefit from being in a small, nurturing and predictable environment (Carra, Pike-Bothelo).
65. On April 10, 2000, Mr. Guy Silvester and Dr. Fran Kelly, Out of District Coordinator/Psychologist at Greenfield Public Schools, visited the Eagle Mountain School (J12, J38). The observation lasted for approximately 45 minutes (J38). Dr. Kelly described the facility as consisting of makeshift classrooms, rather small and cluttered, and characterized by high levels of extraneous visual stimulation because of curriculum material, plants and art projects (J12, J38). At the time of their visit, there appeared to be seven or eight students, all older than Student, working with two teachers on a language arts writing exercise. Student was working in a group of two on a task generating words starting with the letter J. Student exhibited good attention; his mood was positive (J12, J38). At that time Student’s reading progress had not been formally evaluated but Ms. Christenson had plans to do so with standardized testing with the WJR word recognition subtest, the WRAT decoding subtest and perhaps some additional measures to address reading comprehension (J38). Dr. Kelly noted the following specific and general concerns about the Eagle Mountain School program: No on site speech and language therapy; no psychological support services or consultation for a child regularly seen by a child psychiatrist who may have resumed individual therapy; limited opportunity for varied socialization with peers given the small number of students [all of whom were one to eight years older than Student]; questionable qualifications, credentials, and training of teaching staff; questions about whether the curriculum was adequate to completely address Student’s learning needs; and serious concerns about assessment of student progress (J12, J38).
66. At Eagle Mountain, all of the students’ progress is evaluated through teachers’ ongoing assessment of mastery of content and review of their portfolios. At the end of the year Student was reading phonics-based books on the late first grade level, could write sentences, was beginning to work on writing some phrases and was easier to understand (Christenson, Carra). Although he does not socialize with Students outside of the school day, Student does interact with them during the unstructured parts of the day (e.g., lunch, soccer, end of the day) (Carra, Mother, Christenson). Standardized tests are given in September and May (Christenson, J37). Eagle Mountain administers the Word Opposites subtest of the Detroit Tests of Learning Aptitude-3 (DTLA-3), the Wide Range Achievement Test (WRAT) Reading, Spelling and Arithmatic subtest, the Woodcock-Johnson Word Attack subtest, the Passage and Comprehension subtests of the Gray-Oral Reading Subtest-3, the Lindamood-Bell Auditory Conceptualization Test (LACT) and the Woodcock-Johnson Tests of Achievement in Writing fluency, writing sample, Science and Social Studies and the Peabody Picture Vocabulary Test (PPVT)(J37, J40). Eagle Mountain records the test results on a prepared comparison sheet, recording the name of Student, the date of testing and percentile rank and/or Grade Equivalent (GE) scores (J40). Ms. Christenson repeated Janet Pike-Bothelo’s June 23, 1999 administration of the PPVT (percentile rank 42) during the September 20, 1999-session of testing. Student scored at the 53 percentile. The PPVT was not repeated in May 2000 at Eagle Mountain. On the Word Opposites subtest of the (DTLA-3) Student scored at the 25th percentile in May and the 16 th percent tile in September 1999. On the WRAT, Student scored in the 16th percentile in September and the 19th percentile in May in spelling, in the 19th percentile in September 2000 to the 27th percentile in May 2000 in reading and in the .09 percentile in September to the 47th percentile in May 2000 in math (J40). Woodcock-Johnson Word Attack subtest scores were at the 27th percentile in May and the 13th percentile in September. Grade Equivalent’s on the Woodcock-Johnson show writing fluency at a Kindergarten level in September, and a 2.6 GE in May 2000. Writing sample scores of 1.5 GE in September to a 2.8 GE in May, science scores of 1.9 GE in September to 2.5 GE in May and Social Studies GE scores of K5 in September to a 3.1 GE in May (J40). No percentile ranks were given (J40). Scores on the Lindamood Auditory Conceptual test show a score of 55/100 as compared to a 37/100 score done on July 28, 2000. The Gray Oral Passage and Comprehension testing showed scores at below a 1.9 GE level in September and May (J40). No raw or standard scores or test protocols were provided and Student’s behavior during testing and testing conditions are unclear (Christenson, compare J9, J11, J40, J41).
67. Although testing was requested by Greenfield during their April 20, 2000 visit, and again in discovery for this litigation, Ms. Christenson did not provide testing sheet and/or results until her testimony on June 1, 2000 (Christenson, Murphy-Jones). Ms. Christenson did show the test comparison sheet to Dr. Carra who in turn showed it to Dr. Adams (Carra). Both felt that the scores showed that Student made measurable progress (Carra). Ms. Murphy- Jones felt that, based on testing done at Eagle Mountain, Student’s reading gains were confined to single words or words in a list. She questioned the diagnostic soundness of these subtests, and wondered why comprehensive reading evaluations such as the Durrell or Woodcock Reading Mastery Test-R, as well as miscue analysis, was not employed by Eagle Mountain. The only instrument utilizing connected test (the Gray Oral Reading Test-3) showed no gains in grade equivalency from September to May reflecting no growth in reading comprehension (J40, Murphy-Jones).
68. On June 8, 2000, Carla Bernier, CCC-SLP, submitted a progress report regarding her twice-weekly work with Student during the 1999-2000 SY (J41, J46). The focus of speech/language treatment was increasing skills for word retrieval, categorization, understanding basic directional concepts, increasing organization and understanding of auditory information. There has been no consultation provided to Eagle Mountain School except for response to one phone call from Ms. Christenson in January 2000 regarding how to help Student describe the mouth movements he felt during LIPS instruction ( see J41, J46, J34, J40 Christenson). Ms. Bernier also has had no contact with Greenfield nor has she seen the proposed program (Murphy-Jones). Ms. Bernier found that although Student was at first easily overwhelmed with linguistic demands that were lengthy and complex, tasks could be enlarged and embellished once Student was comfortable with the activity. He continued to have difficulty with word retrieval and processing simple directions; however, Ms. Bernier’s report is unclear about whether cuing was used as recommended ( see J41). Results on the Test of Word Finding administered on May 22, 2000 found below average scores for age and low average scores for his grade. Ms. Bernier administered the Expressive Vocabulary Test (EVT) and Peabody Picture Vocabulary Test (PPVT) on February 3, 2000 and compared the results with Ms. Pike-Bothelo’s testing on June 22, 1999 and Laura Anderson’s results of April 22, 1998 (Student’s SLP while at Greenfield). Ms. Bernier’s results mirrored Greenfield’s results; Tufts’ standard scores were approximately ten points lower (J41).
69. Ms. Bernier assessed Students’ reading skills in January 2000 using the WIAT Basic Reading and Reading Comprehension subtests and an informal reading inventory. Scores on the WIAT show an ability to decode in the low average range (21st percentile) with comprehension in the below average range (7th percentile). Informal assessments showed an oral reading level at the high instructional primer level and comprehension on the primer frustration level. Ms. Bernier found that when compared to an inventory done on June 24, 1999 (Tufts) Student showed moderate reading and comprehension gains; however, his behavior during these reading passages indicated frustration and low self esteem when doing reading activities ( see J41). Ms. Bernier found that Student learns best with clear expectations, explicit teaching, modeling, verbal prompting, verbal reinforcement, frequent breaks and continual refocusing and redirection and repetition and explanation of directions that are slowly presented with frequent pausing to allow time for processing and assimilating of information (J41). Ms. Bernier opined that in a regular classroom, teachers often give long strings of information without sufficient pausing and with vocabulary and sentence structure above Student’s ability to process. She further opined that a one to one tutor in a regular classroom was not the answer and that such programming would lead to Student becoming aloof, frustrated or developing behavior problems (J41). Ms. Bernier recommended that Student work in a small group setting with similar peers with teachers with a background in language, reading and ADHD. Ms. Bernier feels that since being at Eagle Mountain, Student is more accepting of who he is as a learner and as such, recommended continued placement at Eagle Mountain along with intensive language therapy (J41).
70. If Student did attend the proposed Federal Street program he would have been placed in Ms. Harcourt’s second grade class. Ms. Harcourt was requested by Parents because she had taught his older sister (Harcourt). Greenfield agreed to this request because Ms. Harcourt had worked with Ms. Murphy-Jones for most of the nine years that she had been a second grade teacher at the Federal Street School and was familiar with employing the techniques and modifications recommended by the TEAM. Student would be paired with his best friend and another student identified as having a language disability and possibly one or both of the other students who were suspected of having these special needs and going through initial evaluation at the beginning of the school year (Murphy_Jones, Harcourt). Parents was not told about the students expected of having special needs (Mother). This classroom has eighteen students, none being a student with autism and afull time aide (Ms. Chaffee) assigned to work with him (Harcourt, Murphy-Jones). A Title I teacher is also in the classroom for an hour daily and an AmeriCorp worker who works on literacy is in the class for a half day each afternoon. Parents volunteer are usually in the classroom twice a week. Ms. Murphy-Jones and Ms. Harcourt and would meet twice a week to decide what parts of the following weeks lessons would be co-taught, what parts of the lessons Ms. Murphy would provide back-up support, and which lessons the paraprofessional would be included in. Ms. Harcourt employs several modifications to address attentional needs such as employment of behavioral charts and use of cubbies, breaking down instructions down into small blocks of time, allowing students to manipulate objects (“Squishes”), closely checking in with students and allowing students to move to other spaces in the classroom. She would also receive bimonthly consultation from Dr. Huber regarding implementing Student’s modified discipline code and behavior plan and about ways to increase Student’s self esteem.
71. In response to a discovery request, Greenfield prepared a proposed schedule for Student on February 3, 2000 (J30). If Student had attended the program, the schedule would have been made with the input of Parent (Murphy-Jones). According to the proposed schedule, Student would begin his day with the 15-minute check-in prior to school with Ms. Chaffee. Ms. Chaffee’s most recent experience was as a dental assistant but had worked as a special needs aide in Charlmont from 1986-1990 (J36). Student would have a visual icon (picture) schedule in his binder each day (J29). Ms. Chaffee would review each part of the day with Student. This system is also implemented for two other students in Ms. Harcourt’s second grade class (Harcourt). Fifteen minutes prior to a transition, Ms. Chaffee would tell Student that a transition was coming. Upon completion of each period Student would turn the picture over to reveal the words “All done.” At those times when Student is returning to the classroom after seeing a specialist, Ms. Chafee would transition Student to the activity the class is engaged in (J29, Harcourt, Murphy-Jones).
72. Student would then begin his school day with his second grade class for 15 minutes of choice/community time and a fifteen minute morning circle, followed by math which would be co-taught with Ms. Murphy-Jones (J30, Murphy-Jones, Harcourt). If Student were to have taken this class he would work on addition and subtraction concepts, place value and time and space concepts (Harcourt). Skill building games would be used to teach basic math facts using manipulatives or one of the seven computers in the class. Student would, along with three others in the class, use a “touch-math” system which would pair visual cues (numbers and pictures, i.e. 3 dinosaurs + four dinosaurs), auditory cues (oral instruction) and tactile cues (touching the three dots on the three and counting the three pictures of dinosaurs) (Murphy-Jones, J42, Harcourt). The class would begin with five to ten minutes of information. During that time, math tasks would be modeled, concepts would be paired with the science curriculum, tasks would be broken down and the language repeated, with teacher cuing and visual and verbal prompts to ensure understanding (Harcourt, J2). The lecture would then stop to give an opportunity for the students to respond. The class would then break down to partners or groups and each in the group would repeat the concept to the other(s). Student would be grouped with others who had similar language issues and would be assisted by Ms. Chafee (Harcourt). Math concepts, including word problems, would be broken down into sequential steps and paired with manipulatives (such as cards, clocks, money, pattern blocks), the amount of math material would be modified for Student and Student would be given the opportunity to practice and repeat timed tasks and do some assignments untimed (Murphy-Jones). Many lessons would be reviewed and continued over a two or three day period (Harcourt).
73. After math, Student would along with his class go to Art, Music or P.E. with his second grade class9. This would have been followed by daily 1:1 instruction on literacy goals with Sharon Murphy-Jones focusing on acquiring reading comprehension strategies and writing skills (Murphy-Jones, J2, J30). Student would be missing Social Studies and Science with his class during the day; however, Ms. Murphy-Jones would use materials from these classes and integrate the Social Studies and Science Frameworks curriculum into the reading comprehension and writing tutorial (Murphy-Jones).
74. Following lunch, Student would receive a pullout 1:1 Lindamood-Bell phonemic awareness and sound discrimination training with a reading specialist and then would be reintegrated into his second grade class for language arts (Murphy-Jones, J2). At that time the other second graders would be receiving literacy (Murphy-Jones). Like math, language arts would be team taught with Ms. Murphy-Jones. The team-taught information would be decided the week before through input by Ms. Harcourt, Ms. Murphy-Jones, the Speech/language pathologist (SLP) Ms. Anderson, the AmeriCorp worker and the Title 1 teacher (Murphy-Jones, Harcourt). The students would receive a small amount of verbal information, language would be modeled, concepts would be paired with the Social Studies and Science curriculum, tasks would be broken down and the language repeated by the teacher and the students, with teacher cuing, with visual and verbal prompts, story maps, sequencing cards, manipulatives, over learning strategies, highlighting, and other techniques to ensure understanding (Harcourt, Murphy-Jones, J2, J42, see J38). The lecture would then stop to give an opportunity for the students to respond. If Student was not able to respond correctly the information would be broken down and repeated. The class would then break down to partners or groups and each in the group would repeat the concept to the other(s). Student would be grouped with others who had similar language issues and would have received staff assistance (Harcourt). Throughout the day, the teachers would look for clues from all classmates including Student of signs of fading and would break or slow down (Harcourt, Murphy-Jones). Student would receive his schedule and direction icons mounted on Velcro strips and the classroom would have story maps, lists, charts and written directions on a chart board to assist in attentional difficulties (J38, J42, Harcourt). The SLP would provide consultation to this class and would have, if Student had attended, co-taught Story Grammar Marker (J38). Student would receive modifications in writing skills such as a visual prompt book for writing, outlines, brainstorming techniques, color-coding, dictation of ideas to a teacher (J38). Student would have daily access to the computer for skill building in writing and spelling and obtain information for the science and current events to be incorporated into his language arts program (Harcourt). Although Student would be receiving language-based modifications in his subjects, the content of his curriculum would be the same as his second grade peers (Murphy-Jones, see J42).
75. Following a snack break with his class, Student would meet 1:1 with Ms. Chafee to review or relearn academics and work on organizational skills (J30, J2, Murphy-Jones, Harcourt). He would then end his school day with speech-language therapy or counseling during the science block. On the three days that Student would receive speech/language therapy from Ms. Anderson, he would work on improving receptive and expressive language, word retrieval and recall strategies, pragmatic skills and reading (J2, Murphy-Jones). Ms. Anderson would also consult with Ms. Harcourt and Ms. Murphy-Jones to ensure carryover these skills in class (Harcourt, Murphy-Jones). During counseling, Dr. Huber would work with Student on strategies to increase his feeling of self-acceptance, low frustration tolerance and use of language for problem solving. Dr. Huber would provide consultation to staff for carryover and would work with staff regarding consistent implementation of a behavior program which would include rewards for increased attention to task and task completion (Murphy-Jones, J2). While in Ms. Harcourt’s class, Student would, along with his peers, receive Second Step training. Second step is a program that teaches empathy, problem-solving, and anger-management (Harcourt). After his last period he would be transitioned back to the second grade classroom to meet with Ms. Chafee who would review his schedule for the next day to ensure that he knew what assignments were due, give Student an opportunity to self-evaluate his day, spot any problems which may have occurred and plan for the next day (J2, J30, Murphy-Jones, Harcourt).
76. The Federal Street program was observed on March 3, 2000 by Dr. Carra and Janet Pike-Bothelo to prepare for this litigation. They arrived at 9:00 a.m. spending about ten minutes reviewing Student’s proposed schedule and the corresponding objectives (Harcourt, see J30). At that time Dr. Carra told Ms. Murphy-Jones that she was impressed about how the proposed schedule was set up to address each goal with an assigned time period and service provider. She also told them that she was going to mention this to some other systems because it was such a good idea (Murphy-Jones).
77. Dr. Carra and Ms. Pike-Bothelo then observed the morning circle that had already begun (Carra). Ms. Harcourt’s morning message that day was designed to review words from previous science and weather lessons; do some predicting with words with a fill in the blank activity; review information from the day before activities to help the children connect to that day’s lesson and review priority and core words (Harcourt). Student was not part of the classroom nor was the child with the identified language disability (Harcourt). If Student were in the class he would, along with one or two other students, be assisted with the morning routine by Ms. Chaffee. Icons with the schedule of tasks would be at his desk and a buddy would eventually be encouraged to take over for Ms. Chaffee to assist Student with his social skills (Harcourt). The evaluators observed Ms. Harcourt tell the students what they were going to do that day and read and show a long paragraph with a word missing, asking the students their ideas about what word(s) to fill in the blank. The evaluators had a hard time following the discussion but the students in the group were able to participate (Carra). The evaluators felt that the pace was such that it that it would be difficult for Student to pull out the information (Pike-Bothelo).
78. The evaluators next observed the cotaught inclusion math class. The math class built upon information presented in previous lessons and required the students to apply that information to that day’s lesson. The objectives of that lesson was to increase awareness of grouping by tens as a precursor to place value understanding; to make predictions based on past and present experiences; and follow directions and record answers in written form (Harcourt). Ms. Murphy-Jones and Ms. Harcourt modeled the information, demonstrated it physically and had the students do the activity with a manipulative (Pike-Bothelo, Carra). The children had booklets which listed the directions and contained a recording sheet (Harcourt). During the lesson, the teachers referred back to a prior estimating activity with the lesson building upon an earlier estimating activity from another day. The place value exercise was continued until that following Monday (Harcourt). Dr. Carra felt that the lesson had many good components; however, the rate of language was too rapid and wordy for Student to process (Pike-Bothelo, Carra).
79. After the lesson, Dr. Carra and Ms. Pike-Bothelo observed fifteen minutes of the Art class. Both were impressed by the instructor and felt that this would have been a great class for Student to be in (Pike-Bothelo).
80. Dr. Carra, Ms. Pike-Botehlo, Ms. Harcourt, Ms. Anderson and Ms. Murphy-Jones then met for forty minutes. Dr. Carra and Ms. Pike-Bothelo asked specific questions regarding how Ms. Harcourt provided modifications for a child with a language-based learning disability (Carra, Pike-Bothelo). The Greenfield staff informed them that modifications were already being done for several children in the class; however, Greenfield did not show, nor did the evaluators ask, to see samples of modifications (Murphy-Jones). If they had, the evaluators would have seen individualized modifications to a weekly plan book (fill in the blank, color coding), visual prompts, story webs/maps, graphic organizers, oral input, reduced output expectations and brainstorming and outlining techniques for reading, writing and spelling (J42). During this conversation Dr. Carra and Ms. Pike-Bothelo told Ms. Harcourt that they could tell that there was “a lot of learning was going on in the class”, that the children were involved and interested in what was going on, that they were impressed with how well behaved the children were and were impressed that the Federal Street School had some children who received “social coaching” at recess (Harcourt). The evaluators however, believed that Ms. Anderson may not take an active role in consultation because when Ms. Anderson was asked in several ways about what she would be doing in consultation, told them Ms. Murphy-Jones and Ms. Harcourt were very skilled in implementing language-based modifications in the classroom (Carra, Pike-Bothelo). They were also concerned that when Ms. Murphy-Jones indicated that an inclusion classroom would be good for Student because he would receive the benefit of modeling, believed that this modeling would be incidental modeling and not the planned modeling that Student required (Carra). The evaluators did not mention these concerns to Greenfield (Murphy-Jones).
81. The evaluators left at 11:10 a.m. to go to lunch and visit Eagle Mountain School. They returned at 12:45 p.m. to see the co-taught inclusion Language Arts class and stayed until 1:15 p.m. (Carra, Harcourt, Murphy-Jones, Pike-Bothelo). Students were given a reading and writing lesson which built upon previous material. Ms. Harcourt was working with one group of four students and then circulating around the classroom. Four children receiving Title I services were working independently on previously assigned tasks because the teacher was not there that day. Ms. Murphy-Jones was working with other children on editing and Ms. Chafee was working 1:1 with another child. Another teacher was circulating and helping the children as needed (Harcourt). There was one child on the computer writing a story (Harcourt, Pike-Bothelo). The children were assisting the others in their group. The evaluators also circulated around the groups. They did not examine the materials that each group was using and thus did not know whether any materials were modified (Carra). Dr. Carra was observed asking the children if they knew what they were doing and later was overheard telling Ms. Pike-Bothelo that it was amazing that they all knew what they needed to do (Murphy-Jones). They felt however, that the class was too high level for Student and that there was not a group that he would fit into (Carra, Pike-Bothelo). They also felt that the class would not address his attentional issues as several students were playing with objects in their hands (Carra).
82. At 1:15 p.m. Dr. Carra and Ms. Pike-Bothelo asked to again speak with Ms. Anderson. Ms. Murphy Jones remained present as they asked questions regarding specific language training of the staff. They left again at 1:40 p.m. to return to Eagle Mountain School (Carra, Pike-Bothelo, Murphy-Jones).
83. During the past six (6) years inclusion has become the model adopted by the teaching staff Federal Street School. Ms. Murphy Jones is a certified special education teacher and for six years has also been the assistant principal in the Federal St. School. Her previous experience includes teaching for five years in a substantially separate classroom for children with language-based learning disabilities. She also has eight years experience as a resource room teacher and 2½ years experience as a district coordinator. Ms. Murphy-Jones currently lectures on inclusion at Fitchburg State, Greenfield Community College and UMass-Amherst and has published an inclusion guide for educators which is used at UMass Graduate School of Education (Murphy-Jones, J33). Federal Street School teachers have made a video tape of best inclusion practices which is used by the Graduate School of Education at UMass/Amherst. According to Ms. Murphy Jones, inclusion is appropriate for all children except those with severe behavior problems (Murphy-Jones). Inclusion promotes respect for individual differences; promotes understanding, acceptance and support for all class members; raises expectation levels for all learners; promotes individualized and adaptive instruction; promotes heterogeneous grouping; allows children with disabilities to attend school with their neighborhood peers; allows children with and without disabilities to interact and develop friendships with each other; allows for integrated therapies; promotes social skill building by exposure and interactions with non disabled peers, as they all share the common goal of making and keeping friends; improves language skills for disabled children by immersing them in a language rich environment of a regular classroom; encourages competence because children are treated as competent and capable learners, and inclusion allows children to belong to their first “community,” which is a small reflection of their larger community (Murphy-Jones). In Ms. Harcourt’s class the three (3) identified children with language based deficits in her class and the autistic youngster, are fully accepted by their typical peers and have made significant academic and social progress (Harcourt, see J42).
84. Dr. Carra agrees that it is possible to provide language-based instruction in an inclusion model students are immersed and surrounded with language training in a deliberate and highly structured and organized manner, with language structure, concepts, vocabulary and pragmatics presented throughout the day in a variety of settings, activities and modalities with lessons from the previous day reviewed the following day with new information that is integrated/related to the old information. The teacher must elicit student modeling and elaboration of language and the teacher must ensure that the student is comprehending the material; compare Carra, Murphy-Jones, see J9. Dr. Carra believes that it is necessary for students to be placed in a small group (not to exceed four to six children) with others of similar intellectual ability and similar rates of processing. Otherwise it is a challenge not to lose the language-disabled child or lose the other children while gearing it to those who need the slower pace (Carra). If that can not be done Student should be placed in an appropriate substantially separate language-based program (Carra).
84. Dr. Carra agrees that it is possible to provide language-based instruction in an inclusion
model students are immersed and surrounded with language training in a deliberate and highly structured and organized manner, with language structure, concepts, vocabulary and pragmatics presented throughout the day in a variety of settings, activities and modalities with lessons from the previous day reviewed the following day with new information that is integrated/related to the old information. The teacher must elicit student modeling and elaboration of language and the teacher must ensure that the student is comprehending the material; compare Carra, Murphy-Jones, see J9. Dr. Carra believes that it is necessary for students to be placed in a small group (not to exceed four to six children) with others of similar intellectual ability and similar rates of processing. Otherwise it is a challenge not to lose the language-disabled child or lose the other children while gearing it to those who need the slower pace (Carra). If that can not be done Student should be placed in an appropriate substantially separate language-based program (Carra).
FINDINGS AND CONCLUSIONS
There is no dispute that Student has special learning needs as defined by M.G.L. ch. 71B and 20 U.S.C. 1401 et seq. , and is thus entitled to receive a free, appropriate public education that assures his maximum possible development within the least restrictive environment. There is also no dispute regarding the nature of his special needs nor whether this IEP is appropriate for Student. The Parties stipulate that it is.
The dispute is whether Student’s needs can be adequately addressed in an inclusion program. Parents do not feel that special needs students or any student’s needs can be addressed in an inclusion classroom. Throughout this matter everyone has expressed their opinion about what inclusion is. Dr. Webster opined that the goal of inclusion was to meet students emotional and social needs and save money for other uses. (J35, Finding 58). Ms. Bernier opined that putting Student into a regular classroom he would receive long strings of information without sufficient pausing and vocabulary and sentence structure above Student’s ability to process (J41, Finding 68). Greenfield feels that, with relatively few exceptions, language-based programming can occur in a regular classroom without sacrificing curriculum as long as the appropriate teaching strategies and modifications are put in place.
Studies show that Inclusion has numerous benefits and is in whole, or in part, the least restrictive environment for most children with disabilities (Murphy-Jones). The law requires that Students receive appropriate programming in the least restrictive setting. As such, inclusion should be encouraged and put into place whenever possible. However, the law also requires that programming be based on the individual needs of the student. Inclusion, because of the student’s disability, or combination of disabilities, may not be appropriate for a particular student or for a particular period of time. As such, it may behoove Greenfield to locate or create substantially separate language-based programming for those children whose individual needs require it.
Inclusion also requires proper implementation in order to be effective. What Ms. Bernier describes is throwing a student into a regular classroom without adequate supports. Those programs are not inclusion and will not be deemed appropriate. However, except for one phone call with Ms. Christenson, Ms. Bernier has had no contact with either program and as such her conclusions about the programming occurring in Ms. Harcourt’s class if Student were to attend, or the appropriateness of Eagle Mountain is given little weight. Similarly, Dr. Webster’s conclusion that Student would not have made as much progress in the public school is based solely upon Mother’s report. Dr. Webster is a family friend with no expertise in implementing educational programs. She did no personality testing, did not review any records nor talk to Greenfield or Eagle Mountain staff when making her assessment. As such, her conclusions are also given little weight.
An appropriate inclusion program may, depending on the needs of the student, be more expensive than substantially separate programming. It often requires require extra school staff or consultants and always requires more work for those who implement it. An inclusion program requires coordination, consistency and constant communication between the parents and all who service the child (or program). It also requires the flexibility to fine-tune the program to meet the Student’s individual needs. A language-based inclusion program for Student requires language immersion throughout the day, with highly structured multisensory teacher directed instruction, by teachers who can identify Student’s level of language comprehension and break down the language presented into manageable chunks; is paced to allow time to process the language directed, encourages Student to expand his attention and expressive and receptive language and pragmatic skills with use of appropriate modifications (e.g., outlines, graphic organizers, schedules, charts, rephrasing, repetition, cuing, fill-ins, highlighting, multiple choice, reduced output expectations, good social and language models to encourage communication, preferential seating) (Carra, Pike-Bothelo, Murphy-Jones, J2, J9, Findings 29, 77). Student also requires small group and individual language therapy three times weekly to address word retrieval and recall problems and improve narrative abilities; individual Lindamood training to increase phonemic awareness; a 1:1 highly structured phonetically based reading and writing program such as Project Read or Orton-Gillingham to increase reading and writing fluency, comprehension and output and spelling; 1:1 counseling and consultation, to deal with self esteem, interpersonal conflicts and behavior management; daily check-in/check out time and study skills instruction to deal with organizational deficits; and consultation and bimonthly meetings to ensure continuity and follow through of strategy based instruction and specific techniques (Finding 30, J2).
Although Parents agree otherwise, both Greenfield and the evaluators have indicated that this Student can be serviced in an inclusion program if it can be implemented properly (Carra, Murphy-Jones, but see Mother). Dr. Carra and Ms. Pike-Bothelo have testified that Greenfield’s program has many good components but that the pace is too fast, the language is at times too wordy, there is not an appropriate peer group for Student and the SLP could not give adequate carryover to the classroom. Both evaluators have many years of experience in evaluating students with language-based learning disabilities and evaluating language-based programs. As such, their testimony is given weight.
However, a person’s perception through an observation is based on what they see or hear and is shaped by the prior knowledge they have of the situation as well as prior experiences. The act of observation itself also may change the dynamics of what is seen. In this situation, these evaluators prior knowledge of the situation was based upon their testing and by Parental report telling them that Greenfield had not met his needs in first grade and the program would not met his needs in second grade. Neither evaluator talked to Greenfield during testing, and other than the IEP’s, did not look at school records which indicated progress. Although Ms. LeBreck provided them with twelve pages of information regarding Student’s growing school performance, all positive information was ignored. Student has attention deficits and has avoidance issues during testing situations ( see J9, J7, J14). Testing occurred in Boston, a more than two hour drive from his home in Greenfield. Student could not complete educational testing and scored ten standard points lower on language testing with Ms. Pike-Bothelo than he did with Ms. Anderson or Ms. Bernier. As such, these evaluators went into this observation with a perception that this Student’s language disability was greater than it may be and with the perception that Greenfield had not been able to meet his needs.
In addition, when these evaluators went to see the Federal Street program, Student was not there and had never been a part of that second grade class. As such, the evaluators observed an inclusion class that would have been fundamentally different if Student were a part of it.10 The student with the identified language disability was not there that day and the evaluators did not know which students were in the process of evaluation for language-based programming nor did they examine the modifications those children received. As such, the evaluators did not have adequate information to know whether or not that grouping would have been appropriate for Student. Ms. Pike-Bothelo’s and Dr. Carra’s feeling that Ms. Anderson might not provide adequate language therapy and/or consultation has been carefully considered; however, the evidence presented shows that she is Massachusetts and ASHA certified, would have provided Benchmark Story Grammar marker instruction if Student was in the classroom, has conducted testing with results that are similar to Ms. Bernier’s and has provided consultation in first grade. Ms. Carra and Ms. Pike-Bothelo could not in testimony specify why they came to this conclusion. Therefore, the conclusions regarding the appropriateness of the Federal Street program are given less weight and do not meet the more likely than not (preponderance standard) threshold that this program is inappropriate.
Ms. Murphy-Jones was able to in testimony explain how Student’s program would be modified to make it language-based. Although neither Ms. LeBreck nor Ms. Harcourt are certified in special education, they were able to spontaneously and credibly answer the Hearing Officer’s questions about what techniques and accommodations they use in their classroom to assist language-disabled children. Both considered themselves part of a team who had previously, and would for Student, carry over consultation suggestions from Ms. Murphy-Jones, Ms. Anderson and Dr. Hubert. This consultation, along with the bimonthly meetings with Parent(s) would have been appropriate to ensure that the pace of the class and the language presented would be such that Student could understand and respond to the language presented to him and would have allowed the flexibility needed to fine-tune the program if needed.
Having decided that the Federal Street program is appropriate there is no need to go farther to determine whether the Eagle Mountain program would have provided a FAPE in the least restrictive environment. However, there are a few things which should be addressed. Parent’s Counsel, citing Carter11 asserts that Parents are not held to a standard of ensuring that their private placement meets the definition of a FAPE. This is in error. The United States Supreme Court held in Carter that parents are not barred from reimbursement for a unilateral private placement simply because it does not meet the standards of the state educational agency. However, Carter also reaffirms the holding in Burlington that parents who “unilaterally change their child’s placement during the pendency of review proceedings, without the consent of the state or local school officials, do so at their own financial risk…. [Parents] are entitled to reimbursement only if a federal court concludes both that the public placement violated IDEA, and that the private school placement was proper under the Act”; Carter quoting Burlington , 451 US 359 at 373-374 (1985).
A parental placement, unlike a public school program, does not have to provide a student with maximum feasible development e.g. Matthew J. v Massachusetts Department of Education; 989 F. Supp. 380 (D. Mass. 1998); however, being “proper under the Act” still requires that the program be individualized and reasonably calculated to enable the child to receive educational benefits; see e.g. Board of Educ. v. Rowley , 548 U.S. 176, 203 (1982). The Eagle Mountain program, despite good intentions, does not meet the Federal standard of appropriateness. It is not individualized for Student in that it does not provide the literacy or writing program recommended by the TEAM, offers no psychological services or pragmatic instruction, contains no carryover of private speech therapy goals and objectives and no extended year programming to prevent regression (Christenson). The Lindamood-Bell program that was effective for Student over the summer of 1999 was effective in the Fall of 1999 because it was administered by a teacher with limited experience in Lindamood-Bell.
The program has also not been reasonably calculated to provide educational benefit for Student. At the end of the first grade at the Federal Street School student was reading at a first grade level and writing paragraphs (LeBreck). At the end of second grade at Eagle Mountain Student was reading on a first grade level and just beginning to write sentences (Mother, Christenson). At the end of first grade at Federal Street Student was interacting with others socially and had increased self-esteem. During February and March of his second grade year at Eagle Mountain Student was struggling emotionally, was overwhelmed and distraught at times, was having more difficulty handling frustration, and was having intense episodes where he cried, called himself stupid and on one occasion talked of suicide (J35). At Eagle Mountain he
perseverated for over an hour because he colored a cardinal blue and was told to color it red (Carra, Christenson).
Parents have admitted that Eagle Mountain may not have the speech therapy that Student needs and provides limited opportunities for social interaction.12 They maintain however, that there are a lack of private placements in Western Massachusetts that will address Student’s needs and those that are available have no openings. This Hearing Officer is aware that there are fewer out of district programs in Western Massachusetts than students who may need them. This is especially true in Franklin County. A program however, can not be considered appropriate simply because it is available. It must provide a FAPE.
Parents have indicated that Student will be remaining at Eagle Mountain. Parents always have the right to place their children privately. If however, they wish to be part of a TEAM with Greenfield to develop a program for the 2000-2001 SY, they will make Student available for academic testing to ascertain his current achievement levels so that a program can be developed for him.
Parents’ request for reimbursement for private speech therapy and tuition at the Eagle Mountain School is DENIED.
By the Hearing Officer,
Joan D. Beron
Date: November 2, 2000
On August 15, 2000, the Hearing Officer by phone conference informed the Parties that she may need to reopen this matter to take further evidence and take jurisdiction over the 2000-2001 SY. The Parties were given the opportunity to voice their assent or objection. A hearing date was scheduled for October 5, 2000 by mutual assent to allow the Team to reconvene and Parents to consider the recommendations of the Team. When no response was received by August 31, 2000, the Hearing Officer issued a ruling reopening of this matter. The Parties were allowed to submit written arguments in this matter. After receipt of the arguments, this matter was not reopened; however, the Hearing Officer will give guidance based on the evidence presented regarding the 2000-2001 SY.
The Parties stipulate that the IEP (J2) is appropriate, and with some minor exceptions, incorporates the recommendations of the independent evaluators at Floating Hospital (see also Carra, Pike-Bothelo, Murphy-Jones). The dispute is regarding whether the Student’s needs must be met in a private day placement for language disabled students.
At Hearing, Dr. Carra examined the records and admitted that student made progress.
Articulation, voice and fluency were within normal limits (J9).
The Parties stipulate that OT services were no longer needed; see also Carra.
For the 2000-2001 SY Ms. Christenson will have two of the eleven students leaving because they are “aging-out” of the age 14 age limit. She has accepted six new students all who are private pay but one (Christenson).
Official notice of M.G.L. Ch. 76 §1 has been taken.
Ms. Jacobs is certified in elementary education and administration & has worked as an elementary school teacher and elementary principal prior to her three years in this position. Her credentials were not challenged.
On Thursday’s he would instead of music, receive counseling. Student would also receive counseling during the last period of the day on Wednesday and Friday (J30).
This is not to say that a program can never be found inappropriate if it is observed when a Student is not in it. Whether or not a program is appropriate is dependent on a number of factors.
Florence County Sch. Dist. Four v Carter , 510 U.S. 7 (1993).
The program is also housed in a building that is cramped, visually distracting and overcrowded especially if the fifteen students accepted to attend Eagle Mountain in the 2000-2001 SY actually do attend.