Hopkinton Public Schools v. Student – BSEA #05-2682
COMMONWEALTH OF MASSACHUSETTS
SPECIAL EDUCATION APPEALS
Hopkinton Public Schools v. Student
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 said statutes.
A hearing was held on February 15, 2005 at the Bureau of Special Education Appeals, 350 Main Street, Malden, Massachusetts, before Catherine M. Putney-Yaceshyn, Hearing Officer.
Hopkinton Public Schools requested a hearing on December 8, 2004 and a hearing was scheduled for December 29, 2004. Hopkinton requested a postponement of the hearing on December 16, 2004 and a conference call was held on January 6, 2005. The hearing was rescheduled for February 15, 2005 and proceeded as scheduled. Neither party requested permission to submit closing arguments and the record closed on February 15, 2005.
Those present for all or part of the Hearing were:
Trudy Sack Director of Student Services, Hopkinton Public Schools
Linda Ashley Special education teacher, Hopkinton Public Schools
Maureen Harris Speech language pathologist, Hopkinton Public Schools
Mary Joann Reedy Attorney for Hopkinton Public Schools
Catherine M. Putney-Yaceshyn Hearing Officer
The official record of this hearing consists of Hopkinton’s exhibits marked S-1 through S-8 and hearing officer exhibit marked H-11 and approximately 2 hours of recorded oral testimony.
Whether Hopkinton Public Schools acted properly in denying Parent’s request for an independent evaluation on the grounds that the school’s evaluations were comprehensive and appropriate and provided sufficient information to draft an appropriate IEP.
SUMMARY OF THE EVIDENCE
1. The student (hereinafter, “Student”) is a nine-year-old third grade student residing in Hopkinton, Massachusetts, within the Hopkinton Public School District (hereinafter, Hopkinton). He attends the Elmwood School in Hopkinton, Massachusetts. (S-3) Student’s I.Q. has been assessed to be in the high average range. He has specific learning and communication disabilities that prevent him from accessing grade level curriculum without support. (S-3)
2. Student currently receives services pursuant to the last accepted IEP, dated December 12, 2003 – December 11, 2004 and accepted by Mother on December 20, 2003. (S-3) The IEP includes consultation between the special education and regular education staff in the area of English Language Arts, consultation between the speech language staff and the regular education staff, and between the counseling staff and the regular education staff on an “ongoing” basis. The B grid includes services in the area of English Language Arts from the “spec.Ed/Reg.Ed.” 3 x 30 minutes per five-day cycle. Additionally, the IEP includes services from the special education staff in a separate setting in the area of English Language Arts 5 x 40 minutes per week and speech language services with the speech language pathologist 2 x 30 minutes per five-day cycle. The IEP also provides for counseling with the counseling staff 1 x 30 minutes per five-day cycle. (S-3)
3. Parents have not signed the most recently proposed IEP for the time period December 15, 2004 – December 14, 2005. The service delivery grid is almost identical to the prior IEP, although it does not provide for counseling. (S-1)
4. Betty Dannewitz, Ph.D., completed a psychological evaluation of Student on January 9, 2003, when he was seven years old and in the first grade2 . The evaluation was done pursuant to a request by the Learning Support Team due to concerns about Student’s “ability to follow directions, and his progress in the areas of reading, and writing.” Dr. Dannewitz described Student as friendly and cooperative throughout the session and indicated he was not easily distracted by sight and sounds in the testing area. She administered the Wechsler Intelligence Scale for Children-III, the Woodcock-Johnson Psycholeducational Battery-III3 , the Bender Visual-Motor Gestalt Test, Conners’ Teacher Rating Scale-Revised, and the Sentence Completion Test. Dr. Dannewitz concluded that Student’s overall cognitive ability fell within the high average range as did his verbal and performance IQ scores. His score on the Bender Gestalt Test was within the average range as well. Student’s score on the short-term memory cluster of the Woodcock-Johnson was in the low average range and an area of “relative weakness for” Student. His processing speed was assessed in the average range. Dr. Dannewitz reported that Student’s classroom behavior is “at a significant problem level in areas including: ability to attend to instruction and produce academic work as expected in the classroom, anxiety-shyness, social problems, and emotional lability.” She indicated that the scores “may be reflective of ADHD, but they also could, instead, be a reflection of other social/emotional difficulties.” She suggested that Student’s outside therapist or physician may be interested in those results. (S-5)
5. On January 10, 13, 16, and 17, 2003, Anne Corkery, M.Ed., conducted an educational evaluation of Student utilizing the Woodcock Johnson-III Tests of Achievement and the Phonological Awareness Test. The reason for the referral was that Student’s classroom teacher was concerned about Student’s difficulty with reading, writing, and following directions. Additionally, at the time of the referral, Student did not know the alphabet and showed low levels of confidence in class. Ms. Corkery noted that Student’s response time was lengthy for most language arts tasks, “especially when recalling letters to write.” “He had to really stop and think about how a specific letter looked before writing it down.” He demonstrated b/d reversals and p/q reversals. “He did a lot of erasing while writing and left out spacing, capital letters, and punctuation.” (S-6)
On the Woodcock-Johnson, Student’s Basic Reading Skills were in the low average range, his Broad Reading score was in the low range. He scored in the low average range in the area of Written Expression and the low range in Broad Written Language. His math scores were in the average range. His Academic Skills score was in the low average range and his Total Achievement score was in the low range. On the Phonological Awareness Test Student scored in the average range in rhyming, isolation, deletion, and substitution. He scored in the above average range in segmentation. He scored in the low average range in consonant graphemes, decoding and two subtests assessing decoding non-words. He scored in the low range on consonant digraphs, the very low range for vowels and below norms for consonant blends. Ms. Corkery concluded that Student has not developed phonetic decoding skills needed to fluently read words in isolation or in texts. She stated that his specific areas of weakness will make reading and writing fluently and independently highly difficult and unsuccessful at this point. She did not make recommendations in the report, but indicated she would make them at the team meeting. (S-6)
6. Maureen Harris, CCC-SLP, completed a speech language evaluation of Student on January 3, 2003 using the CELF-3. She noted that Student’s classroom teacher completed the CELF-3 Observational Rating Scales and indicated no listening/speaking problems that always occur. Difficulties were noted to sometimes occur in following directions, remembering or understanding what others say, providing details when talking, talking in a group and coping when others do not understand him. The results of the CELF-3 showed that Student had some strengths in the areas of understanding sentence grammar, following directions, and awareness of grammar rules. Student showed significant weaknesses in recognizing word relationships, understanding stories, creating grammatically complete sentences, recalling sentences and quickly retrieving words from memory. Ms. Harris deferred making recommendations until the Team meeting. (S-8)
7. Student’s progress was reported in a progress report dated June 21, 2004. Linda Ashley, Student’s reading teacher, reported that Student was beginning to use context clues to figure out new words and to correct his errors when reading and was beginning to apply his spelling skills to his daily written work. He had learned “open, closed, silent e, and vowel team” syllable types. Ms. Ashley concluded that Student had made “great gains in reading” that year. Special education teacher, Mary Hurley, reported that Student worked very hard that year in English Language Arts. She reported that Student used more beginning and ending punctuation in his writing, although his skills were not consistent. He continued to write short sentences, but would add more detail with teacher prompting. He was writing more on his own and was more confident in his writing. He continued to require adult support to organize and structure his thoughts. Student’s speech language pathologist, Margaret Thornberry, reported that Student continued to make progress using vocabulary, synonyms, and antonyms. She noted that he continued to make progress in recalling, identifying and sequencing events from the curriculum with teacher assistance. Nicole Henderson, school psychologist, reported that Student continued to work on ignoring distractions, completing assignments, and setting goals. (S-4)
8. Mother made a request for an evaluation by letter received by the school on December 2, 2004. Specifically, Mother requested that Hopkinton fund an evaluation with a specialist who could diagnose Student with dyslexia. (H-1)
9. Trudy Sack, Ph.D., Director of Student Services, responded to Mother’s request in a letter dated December 6, 2004. Dr. Sack indicated that Student had been found eligible for special education services and the team had agreed that he has a specific learning disability in the areas of reading and writing. She wrote, “your son currently has an IEP and receives highly specialized and individualized instruction in reading five days per week for forty-minute sessions. He also receives specialized services in the classroom for written language.” Dr. Sack stated that student’s service providers felt their evaluations were thorough and comprehensive and they had designed an appropriate IEP for Student and denied Mother’s request for an independent evaluation. (H-1)
10. Student’s progress was reported in a progress report dated January 28, 2005. Linda Ashley, Student’s reading teacher, reported that Student applies phonics rules when reading grade level stories with above 80% accuracy and achieves 80% accuracy on his weekly spelling tests of third grade words. His oral reading accuracy and fluency continued to improve as his reading skills became more automatic. He showed strong comprehension of the material he read. He had learned the seven syllable types and read two-syllable words with 80% accuracy. Special education teacher, Heather Cowley, reported that he was applying more phonetic skills in his writing samples. Additionally, he has shown increased success in writing expanded sentences. Speech language pathologist, Jessica Auerbach, reported that if Student is cued with “wh-questions,” he can expand upon his initial sentence and provide more information. School psychologist, Nicole Henderson, reported that Student’s attentional skills have developed and he presents as a more mature and responsible student this year. She stated that his ability to complete assignments is age-appropriate. She noted that Student is enjoying reading more this year than he has in the past and is putting forth good effort in reading. (S-2)
11. Linda Ashley testified that she is a certified elementary and moderate special needs teacher and has had significant experience in providing phonetic reading programs. She has received training in both Orton-Gillingham and Project Read. She was Student’s reading teacher last year and is currently his reading teacher and his liaison. She explained that she uses her Orton-Gillingham background and Project Read to provide Student with a multi-sensory program for reading. Ms. Ashley testified that Student began the second grade reading at the first grade level. She testified that Student had progressed from the first grade level to the second grade level by the end of his second grade year. In addition to making one year’s progress in the second grade, his written language skills improved during the second grade. She explained that Student has continued to make progress during the third grade. He recently scored 88% on a third grade level test. Student is starting to write more and can write a paragraph now. (Ashley)
12. Ms. Ashley testified that during the December 14, 2004 Team meeting Mother expressed her concern that Student should receive a diagnosis of dyslexia. Mother requested that the school provide testing that would provide him with said diagnosis. Ms. Ashley stated that she would not provide Student’s services any differently if he did have a diagnosis of dyslexia. (Ashley)
13. Maureen Harris testified that she is a nationally certified and state licensed speech language pathologist. She testified that she evaluated Student in January 2003. (S-7) She reviewed her report (S-7) and described Student’s profile. She stated that Student’s obtaining a diagnosis of dyslexia would not assist her understanding of his needs. (Harris)
14. Student’s grandfather testified that he believes that Hopkinton has done an adequate job up to this point in addressing Student’s disability. However, he thinks there is more that can be done to assist Student. He testified that he believes the initial testing done by Hopkinton was adequate, but Student is now in the third grade and two years have passed since his last evaluation. (Grandfather)
FINDINGS AND CONCLUSIONS:
The issue before me is a narrow one. Student’s eligibility is not in dispute and there is no dispute regarding the services currently being provided. The dispute involves the question of whether Student is entitled to an independent evaluation at public expense. Based upon the information before me I find that he is not. My reasoning follows.
A parent’s right to obtain an independent educational evaluation is described by federal regulation at 34 C.F.R. § 300.502. This section states, “A parent has the right to an independent educational evaluation at public expense if the parent disagrees with an evaluation obtained by the public agency.” However, if the school district demonstrates to a hearing officer that its evaluation is appropriate, then the parent does not have the right to obtain an independent evaluation at public expense. 34 C.F.R. 300.502(b)(3).
In this case, Mother did not disagree with the evaluation obtained by Hopkinton. Instead, she sought a more precise diagnosis of a learning disability that has been identified and recognized by Hopkinton. She does not dispute the results of the evaluation or the sufficiency of the services being provided. Although not disagreeing with Hopkinton’s results, Mother believed that one specific and critical part of Student’s diagnosis was omitted, namely a specific diagnosis of dyslexia. Thus, arguably under 608 CMR 28.04(5)(d) Mother would have a right to obtain an independent evaluation “in an area not assessed by the school district” unless Hopkinton requested a hearing and proved that its evaluation was comprehensive and appropriate. See also 34 CFR § 300.502.
Hopkinton complied with both 34 C.F.R. § 300.502 and 603 CMR 28.04(5) by requesting a hearing within five days of Mother’s request for an independent evaluation and by demonstrating that its evaluation was comprehensive and appropriate. Ms. Harris testified in detail about the evaluation she performed upon Student and she credibly described her understanding of Student’s strengths and weaknesses. She was also credible in her testimony that Student’s having a specific diagnosis of dyslexia would not assist her in understanding his needs. Ms. Ashley was also credible in her testimony that she would not provide Student’s services any differently if he had a specific diagnosis of dyslexia. She explained that Student made one year of progress in reading last year and continues to make progress this year. (Ashley)
Student’s grandfather testified that he and Mother were concerned that Student’s testing was outdated in that it had been done when he was in the first grade and he is now in the third grade. There is nothing barring Mother from requesting updated school based testing of Student. It may be useful for the parties to assess Student’s progress now that he has been receiving special education services for approximately two school years. There is also nothing barring Mother from obtaining the independent educational evaluation at private expense.
Parent did not rebut Hopkinton’s assertions that the assessments completed by Hopkinton were not comprehensive or were inappropriate and the evidence does not support such a finding.
Based upon the foregoing, Hopkinton is not required to provide funding for an independent educational evaluation.
By the Hearing Officer,
Catherine M. Putney-Yaceshyn
Dated: March 9, 2005
The hearing officer exhibit consisted of Parent’s request for evaluation and the school’s response which had been submitted with the hearing request and were contained in the administrative file. Hopkinton requested that the documents be included in the record as exhibits and Parent did not object.
Student repeated Kindergarten.
She administered portions of the tests of cognitive ability. (S-5)