Xenon Public Schools – BSEA #09-7928 and 10-0262
COMMONWEALTH OF MASSACHUSETTS
SPECIAL EDUCATION APPEALS
In Re: Xenon1 Public Schools
BSEA #09-7928, 10-0262
This decision is issued pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 USC Sec. 1400 et seq., Section 504 of the Rehabilitation Act of 1973 (29 USC Sec. 794); the Massachusetts special education statute or “Chapter 766,” (MGL c. 71B) and the Massachusetts Administrative Procedures Act (MGL c. 30A), as well as the regulations promulgated under these statutes.
On June 12, 2009, the Xenon Public Schools (hereafter Xenon or School) filed a request for a hearing with the Bureau of Special Education Appeals (BSEA) seeking a determination that the Student’s IEP for the period from December 18, 2008 through December 17, 2009 was reasonably calculated to provide the Student with a free, appropriate public education (FAPE) in the least restrictive environment, and that the school district had implemented the IEP. Additionally, the School sought a BSEA decision stating that the Parents’2 withdrawal of consent for Student to participate in reading services and summer services contained in that IEP (which otherwise was accepted) had prevented the School from fully meeting the Student’s identified needs, and, thereby, had caused the Student to be denied a FAPE.
On July 8, 2009, Parents filed a Cross Request for Hearing, in which they alleged that the School had failed to fulfill its obligation under a 2008 settlement to provide eleven weeks of Reading Recovery instruction. Parents also alleged that the School failed to fully implement the accepted portions of Student’s IEP, and had committed numerous violations of procedural rights under the IDEA. Parents sought reimbursement of their expenses for private Reading Recovery services, as well as “necessary and appropriate” additional relief to compel the School to comply with the IDEA and state law. The two hearing requests were consolidated.
The hearing was postponed several times at the request of the parties. Multiple conference calls were held between the parties and the Hearing Officer to address discovery issues and other preliminary matters.
A hearing was held on September 29, 30, October 16, and December 11, 2009 and January 21, 2010 at the offices of Catuogno Court Reporting Services, Worcester, MA.
The Parents represented themselves and the Student for some of the hearing, and were represented by an advocate for much of the remainder. The School was represented by an attorney. Each party had an opportunity to examine and cross-examine witnesses and submit documents into the record. The record consists of Parents’ exhibits P-1 through P-36, School’s exhibits S-1 through S-110, tape-recorded testimony and argument, and the verbatim transcript prepared by the court reporter. At the parties’ request, the conclusion of the hearing was postponed to March 30, 2010 for submission of written closing arguments and the record closed on that day.
Those present for all or part of the proceeding were:
PD. Grade 2 Classroom Teacher, Xenon Elementary School
EF School psychologist, Xenon Elementary School
RM Principal, Xenon Elementary School
DG Director of Special Education, Xenon
AE Speech/language therapist, Xenon Elementary School
AD Special education teacher, Xenon Elementary School
AC Grade 3 Classroom Teacher, Xenon Elementary School
Michelle Dufresne Private reading specialist retained by Parents
Robert Dufresne Advocate for Parents
Regina W. Tate, Esq. Attorney for Xenon Public Schools
1. Whether the specialized reading services contained within the IEP for December 18, 2008 through December 17, 2009 were appropriate, such that the IEP was reasonably calculated to provide the Student with FAPE.
2. If so, whether Parents’ revocation of consent for these services resulted in a denial of FAPE for the Student.
3. If the reading services offered by the School were not appropriate, whether the School is required to provide or fund Reading Recovery or similar instruction prospectively.
4. Whether the School breached a settlement agreement executed in 2008 by failing to implement eleven sessions of the Reading Recovery services required by the agreement.
5. If so, whether the School was required to reimburse Parents for the cost of the private reading instruction that they obtained in lieu of the School’s Reading Recovery services.
POSITION OF PARENTS
Student has a learning disability that interferes with his learning to read at a level commensurate with his age and cognitive abilities. The Wilson Reading Program, which Xenon provided for Student, proved to be ineffective in enabling Student to make effective progress in reading. Moreover, Student experienced stress and anxiety when this methodology was used to teach him. As a result, Student was shutting down to reading. In contrast to Wilson, the Reading Recovery program has proved to be highly appropriate for Student, as demonstrated by his reading progress and enthusiasm for reading while using this method. The School, however, has been biased against Reading Recovery from the start.
The School breached a settlement agreement obligating it to provide eleven weeks of Reading Recovery instruction during the start of the 2008-2009 school year. The Reading Recovery teacher employed by the School, in fact, was not fully qualified to teach that program, harbored racial or ethnic bias regarding Student, and behaved in a discriminatory and retaliatory manner towards Student and Parents. As a result, to ensure Student’s well-being, Parents had to discontinue Reading Recovery services with the School’s provider and obtain services privately. It is these services for which Parents seek reimbursement. The School further breached the agreement and committed procedural violations when instead of convening the TEAM when the School’s Reading Recovery teacher reported that Student was not doing well, as required by the Settlement Agreement, it convened clandestine “child study” meetings that excluded Parents from participation.
The Parents also revoked consent for the School to implement the specialized reading instruction called for in his IEP. Contrary to the School’s assertions, Parents have not deprived Student of FAPE by doing so. The sequential, rules-based instruction offered under the IEP is ineffective for Student, causes him to experience stress, and to shut down, thereby interfering with his reading progress. On the other hand, the Student makes excellent progress using whole-language instructional approaches such as Reading Recovery. The School has violated Student’s right to FAPE by persistently insisting on an approach from which Student does not benefit.
POSITION OF SCHOOL
As the parties challenging Xenon’s IEPs, the Parents have the burden of proving that the IEPs for December 2008 through December 2009 were inappropriate, i.e. , that they were not reasonably calculated to provide Student with a FAPE . Parents failed to meet this burden. The evidence overwhelmingly supports the appropriateness of the School’s IEPs and placement in view of the Student’s significant weaknesses in phonemic and phonological awareness, and associated delays and difficulties with reading, writing and spelling.
Moreover, the choice of instructional methodologies is solely within the School’s discretion, and the record establishes that the sequential, phonetically-based reading instruction provided to Student is suited to meet his unique needs, and Student has made progress with this methodology. Using a system of positive behavioral supports and incentives, the reading instructor successfully addressed any stress or discomfort that Student experienced while receiving this instruction.
On the other hand, the Parents have failed to demonstrate that Reading Recovery met Student’s unique needs. In fact, the record indicates that Student did not make effective progress with this methodology, according to test scores and the report of the School’s Reading Recovery teacher. Parents’ own expert, who is an experienced Reading Recovery instructor, did not feel that Reading Recovery was still appropriate for Student, as of the date of the hearing.
By failing to allow the School to implement the sequential, rules-based reading instruction contained in Student’s accepted IEP since May 2009, which was supported by comprehensive evaluations of the Student, Parents have denied Student a FAPE.
Finally, Parents failed to prove that the School breached its settlement agreement with Parents. In fact, Parents prevented the School from fully implementing the settlement agreement when they unilaterally withdrew Student from the Reading Recovery services that the School was providing pursuant to that agreement. While Parents found certain statements and conduct of Xenon’s Reading Recovery teacher to be objectionable, their conflicts with the teacher did not constitute a breach of the School’s obligations under the agreement or justify the Parents’ actions in unilaterally withdrawing Student from instruction with that teacher. The School’s sole obligation under both the settlement agreement and the law is to provide a teacher who is appropriately credentialed and licensed. C.L., the School’s Reading Recovery teacher, met these requirements. For these reasons, the Parents are not entitled to reimbursement for Reading Recovery services that they obtained privately, after withdrawing Student from the services provided by the School.
FINDINGS OF FACT
1. Student is a now-ten year old boy who lives with his family in Xenon. Student is universally described as an intelligent, happy, active, creative, and social child who is eager to learn. Student is very athletically talented, and plays team sports in his community. Student is outgoing and friendly, and is well-liked by adults and peers. (Parents, AD, AE, AC, EF) Student also has many academic strengths, including good ability for general learning, for understanding concepts, for verbal and non-verbal reasoning, for reading and listening comprehension, for use and understanding of higher-order language, for math comprehension and for solving hands-on problems. (S- 41, EF)
2. Student has been diagnosed with a communication disorder and specific learning disability in the area of reading. Student has weaknesses in phonological and phonemic awareness, phonics skills, word recognition, and auditory working memory, as well as some processing deficits, all of which affect his ability to acquire reading and writing skills commensurate with his grade and cognitive ability. (S-40, EF, Dufresne, AD, RC, Mother) Student is very aware of his areas of difficulty, and can become anxious and noncompliant when asked to do work in these areas. (S-40; EF, AD, PA, AE)
3. As a toddler and preschooler, Student had expressive and receptive speech and language delays. Student entered the Xenon Public Schools in approximately September 2005 with an IEP from a prior school district, where he had attended preschool. This IEP called for speech-language services. Student spent most of 2005 – 2006 in Xenon’s preschool program.3
4. In October 2005, Xenon conducted psychological, speech-language and educational assessments of Student. The psychological evaluation, conducted by school psychologist EF, included the WPPSI-II, which showed that Student had above-average non-verbal skills, in the 79 th percentile, in contrast to average/low average verbal skills (27 th percentile). Processing speed was low average (21 st percentile). Student’s General Language score was in the average to above average range (75 th percentile), indicating that Student’s expressive and receptive language skills were higher when he used pictures. The psychologist’s report stated that Student was a kinesthetic learner who was still learning best through play and supported the decision to keep Student in preschool for another year. (S-4, EF)
5. The speech-language assessment, conducted by AE, showed that Student had relative weaknesses in auditory processing and expressive language (syntax, concept development and articulation). The educational assessment showed average oral language and academic skills as well as superior academic knowledge. (S-3, 4) Student received speech-language therapy throughout the 2006-2007 school year. According to the June 2006 progress report, Student met his goal of improving overall communication skills, but still needed to improve articulation, oral narration, and phonemic awareness. (S-5)
6. Student moved on to kindergarten for 2006-2007. He was placed in a regular education classroom, where the curriculum included Wilson Fundations, which is a regular education literacy program. He also received in-class special education support in English Language Arts and reading as well as pull-out speech-language therapy. The School conducted an annual review midyear, in January 2007. The teacher assessment indicated weaknesses in phonemic awareness (sound blending), some aspects of oral expression (word-finding, narration, use of full sentences), and word recall. Behaviorally, Student needed adult support to focus on completing work without being distracted by other children. (S-6)
7. The speech-language assessment was conducted by AE, who had done Student’s initial speech-language evaluation and had provided services during kindergarten. The report stated that Student had progressed with articulation and oral expression, but still needed help in these areas. Student continued to need direct support in phonemic awareness, although he had made “tremendous progress” with letter-sound correspondence, retention of key words and sounds, and identifying rhyming words. According to the report, this support could be provided in a coordinated manner by the reading specialist, special education teacher, and speech therapist. (AE, S-7)
8. The joint report of the special education teacher and reading specialist (Ms. LL) stated that Student had made gains in phonemic awareness through the Fundations program, and recommended 2×30 minutes weekly of additional support to enhance phonemic awareness skills and maintain gains. Student was doing very well in math and did not need continued support. (S-8)
9. In February 2007, the School issued an IEP based on the assessments referred to above. This IEP covered January 2007 – January 2008 and called for placement in a full inclusion classroom with 2×30 minutes per week of academic support in the regular classroom and 3×30 minutes per week of pullout speech services. The IEP goals were to improve expressive language, articulation, and phonemic awareness. The IEP also provided for extended school year (ESY) services consisting of weekly speech-language sessions for five weeks. Parents accepted this IEP in full in early February 2007. (S-9)
10. According to the School’s progress reports, Student made progress towards meeting all IEP goals during the period covered by this IEP (mid-kindergarten to mid-first grade) including “significant” progress in phonemic awareness. (S-10) Student’s report cards for Kindergarten also stated that he had made “substantial progress” both socially and academically. (S-11, 12)
11. The School conducted an annual review in January 2008, in the middle of first grade. Reading and educational assessments showed that Student had made social and academic progress in all areas. His spoken language skills had increased significantly, to the point where a reduction in speech services was recommended. Student’s phonemic skills, as measured by the DIBELS and DRA tests, had improved since the start of the IEP period and the fall of 2007, but were still below grade level.
12. The IEP for January 2008 – January 2009 (mid first grade to mid-second grade) provided for regular classroom placement, together with 2x 30 minutes/week each of pullout services for speech-language and English Language Arts. Parents accepted the IEP and placement in full in early February 2008.
13. Between the annual review and the spring of 2008, both the classroom teacher and Parents became concerned that Student was not making adequate progress in reading. Parents had Student evaluated privately by a reading specialist, Dr. Michele Dufresne, on or about May 21, 2008. (Dufresne, P-11)
14. Dr. Dufresne is a recently-retired4 teacher, consultant, and administrator with approximately 30 years of experience in the areas of reading and literacy, including classroom teaching and tutoring of children, as well as design and development of literacy programs within schools. Dr. Dufresne’s career also entailed significant amounts of instruction, supervision, and coaching of teachers in the teaching of reading, both at the college level, as an adjunct professor, and within public schools as an administrator and consultant. Dr. Dufresne has attended many IEP meetings and has worked with special educators, but is not a special education teacher or administrator herself. (Dufresne)
15. Much of Dr. Dufresne’s career has focused on the Reading Recovery program.5 Reading Recovery is a short-term, regular education reading intervention which is intended to prevent the need for long-term remedial reading services—within or outside of special education—by providing struggling first graders with intensive, time-limited, individual instruction in reading and literacy. Schools which use Reading Recovery assess all children at the beginning of first grade, and provide the lowest-performing readers6 with 30 minutes per day of individual tutoring using Reading Recovery methods. This instruction is intended to accelerate the progress of the participating children to enable them to catch up with their peers. The program is designed to be implemented for up to 20 weeks, although children typically participate for about 12 weeks. (Dufresne)
16. Reading Recovery is not a special education intervention. Although an individual child with a reading disability might benefit from the approach, it is neither designed nor intended to address diagnosed dyslexia or other learning disabilities affecting reading and/or language. According to Reading Recovery’s own protocols, if a child has not attained average-for-grade reading skills after 20 weeks of Reading Recovery, as measured by data, he or she should be referred for further assessment. This assessment might well include evaluation to identify learning disabilities. (Dufresne, P-17)
17. Dr. Dufresne’s initial evaluation of Student consisted of Clay’s Observation Survey of Early Literacy Achievement, (Hereafter “Clay Survey”) which is a Reading Recovery evaluation tool, as well as informal assessments. Except for the Letter Identification subtest, where he was in the 99 th percentile, Student had very low national percentile rankings in the Clay Survey subtests as follows: Text level: 1 st percentile; Word Test: 3d percentile; Concepts of Print: 7 th percentile; Hearing and Recording Sounds in Words: 3d percentile: Writing Vocabulary: 3d percentile. (P-10).
18. Dr. Dufresne concluded that Student was approximately one year behind grade level in all measures of his reading skills. Student was able to read independently at Reading Recovery text Level 27 (pre-primer) at the end of first grade; by spring of first grade, the national average is Level 20. Student had a limited sight word vocabulary. He attempted to sound out words letter-by-letter but found this difficult with words taken out of meaningful context. He could not hear or record complex sounds in words, and had a very limited core of words that he could write easily. Student had some skills, but did not know how to put them together coherently for reading. (P-10)
19. Dr. Dufresne recommended daily, intensive reading support from a trained Reading Recovery instructor who could help Student build a “literacy processing system,” i.e., to learn how to quickly and efficiently use all sources of information—sight words, pictures, meaning of text, and decoding—to improve his reading skills. (Dufresne, P-10).
20. Dr. Dufresne did not dispute that Student had documented weaknesses in phonemic awareness. She felt, however, that even though sequential, rules-based methodologies designed to remediate such weaknesses are widely used for children with similar profiles, Student would not benefit if this was the sole approach used with him. Rather, she felt, he did better with a methodology—such as Reading Recovery–in which children learn to use multiple cues and strategies in addition to sounding out words in order to develop literacy behaviors, and in which they read actual books, even if they have not learned to decode every word in the chosen text. Dr. Dufresne further testified, however, that she was not certified or experienced in teaching sequential, rules-based special education methods such as Wilson, Project Read, or Orton-Gillingham, and had not been trained in or observed the regular education Wilson Fundations program that Student had used. (Dufresne)
21. Beginning in May or June of 2008, Dr. Dufresne began providing daily, 30-minute Reading Recovery tutorials to Student at home, after school. Parents paid for this tutoring. During the remainder of the 2007-2008 school year, Dr. Dufresne and Student’s classroom teacher collaborated to reinforce and apply each other’s lessons. Student continued with the sessions on approximately the same schedule throughout the summer of 2008, with breaks for vacations and summer activities. (Dufresne)
22. The tutorials generally consisted of Student independently reading a book that had been introduced at the prior session, then working with Dr. Dufresne on areas of difficulty in the reading. The Student then worked on word analysis using magnetic letters, and incorporated this analysis and some phonics principles into a writing exercise. Finally, Dr. Dufresne would introduce a new book which, Student would read aloud at the start of the next session. In addition to the magnetic letters, Student used other multisensory techniques, such as tracing letters, drawing letters in sand, etc. (Dufresne)
23. During the spring or summer of 2008, Parents requested reimbursement from Xenon for the costs they had incurred for Student’s private tutoring. Xenon denied this request. Xenon and Parents then filed hearing requests with the BSEA seeking decisions related to this issue. The School and Parents resolved both BSEA appeals by executing a settlement agreement (hereafter, “Agreement”), dated August 21, 2008. (Mother, P-1)
24. In pertinent part, this 14-paragraph Agreement stated the following:
Para. (1) Settlement . This AGREEMENT is entered into in full settlement of any and all claims that the [Parents] and/or [Student] have or might have or assert against [School]…for any and all periods since [Student] enrolled in [School district] up to the date of this Agreement.
Para. (3) Financial Contribution . ….[I]n order to resolve this dispute and avoid litigation, [School] agrees to pay, directly to [Parents], one thousand seven hundred and forty dollars ($1740.00) as reimbursement for the first nine(9) weeks of Reading Recovery services…
Para (4) [School] agrees to provide [Student] with eleven (11) weeks of Reading Recovery services to complete the Reading Recovery program. The Reading Recovery services will be delivered by the…[Xenon] Elementary School essential skills teacher, five times per week for thirty minutes per session (5×30). In the event that [Student] cannot receive reading recovery services outside of school hours, the parties agree to convene the Team and mutually agree to adjust the duration of services to minimize the time [Student] would spend outside the classroom. In addition, [School] agrees to a one-time consultation service for thirty minutes…between [School] personnel and Michelle Dufresne, the [Parents’] private tutor. Following this one-time consultation, the parties agree that the consult between the special education teacher and the [Parents’] reading specialist for 1 x 15 per week as agreed to during mediation is no longer required, and will not be provided.
Para (9) The terms of this Agreement shall constitute full settlement of all claims regarding [Student] and his educational services through the date of the execution of this Agreement…
Para (12) The parties acknowledge that this Agreement is a legally binding contract. The parties further acknowledge that they have entered into this Agreement freely and voluntarily and that this agreement is the entire Agreement between the [Parents] and [School].
Para. (14) Upon execution of this Settlement Agreement by all parties, [School]…and [Parents] agree to withdraw their [respective] Request[s] for Hearing with prejudice before the BSEA.
(DG, Mother, P-1)
25. As stated above, Dr. Dufresne tutored Student between approximately May or June 2008 and August 2008. Initially, Dr. Dufresne predicted that Student would make rapid progress with Reading Recovery, and that he would reach Level 18 by the end of the summer of 2008. While he did make progress, it was not as rapid as she expected; by late summer 2008 Student was reading books at Levels 9 and 10, and, as such, was functioning below the second grade level, even though he had progressed from the end of first grade. Dr. Dufresne tried to have Student work with texts at Levels 11, 12, and 13 towards the end of the summer, in order to “get him up into some text that’s sort of like a bridge area where the text requires more processing…” She found, however, that Student “really balked” at those levels. To avoid having Student shut down altogether, Dr. Dufresne did not push Student past Level 10 at the end of the summer. (Dufresne).
26. In sum, Dr. Dufresne attributed the slower-than-expected progress to Student’s sensitivity to being “right” when doing schoolwork, and tendency to shut down if he feels that he is incorrect. Dr. Dufresne testified that for Student, “not failing is his primary purpose.”8 (Dufresne) Reading Recovery requires children to learn to self-correct when the instructor repeats back what the child has read verbatim, including the child’s mistake. Student responded poorly to this technique. He would refuse to continue working because he felt that he was failing. Dr. Dufresne had to balance Student’s tendency to refuse to work if he feared mistakes, on the one hand, while not allowing him to stagnate at his comfort level on the other. Among other things, Dr. Dufresne developed alternative prompting methods to preserve Student’s confidence while still enabling him to correct his own errors. (Dufresne)
27. Additionally, Dr. Dufresne testified that summer tutoring in Reading Recovery was not optimal, since the program is designed to be coordinated with classroom instruction. She further testified, however, that the Parents’ daily reinforcement of Student’s tutoring sessions was very helpful to Student. (Dufresne)
28. Student entered second grade in September 2008. Pursuant to the accepted IEP referred to above, Student was placed in a regular education classroom with 2x 30 minutes/week each o/f pullout services for speech-language and English Language Arts. Additionally, pursuant to the Settlement Agreement, Student began receiving Reading Recovery instruction from the School’s essential skills teacher, CL.
29. CL is a certified teacher with a Master’s degree and at least 17 years of experience, with specialization in remedial reading programs for first and second grade. In addition to certifications for Early Childhood and Grades K – 3, CL holds certifications in Reading Recovery and Reading (Grades K – 3). Her experience includes approximately 7 years within a large, urban district. CL taught Reading Recovery to first and second graders during that period, along with remedial reading, writing, and math to bilingual students in grades 1 – 3 and remedial reading to low-achieving students in grades 1 – 5.9
30. CL first began meeting with Student on or about September 12, 2008, but did not start regular lessons with him until approximately September 22, 2008. (Mother, P-11) CL and Parents exchanged regular notes on Student’s progress. According to a few of these notes, Student was on Level 7 (presumably, according to the Reading Recovery text levels) as of September 29, 2008. However, as of October 1, 2008, CL’s note stated that Student was working on a Level 4 book, making “visual errors,” “guessing” at words and “not looking carefully.” (P-11)
31. Parents were working on reading with Student on most evenings, and the notes in evidence mostly discuss titles of books, games, etc. that Parents and CL were using. (P-11)
32. Almost from the beginning of Reading Recovery services in September 2008, Parents began questioning whether the lessons from CL were helping Student. According to Mother’s testimony, she became concerned that regular sessions did not begin until late September 2008 although school had started in late August, that CL was meeting with Student around twice weekly instead of daily, that CL was not writing in home-school notebook daily as agreed, and that CL reported Student to be reading at Level 7 on September 1 when he had ended the summer at Level 10 with Dr. Dufresne. (Mother)
33. Dr. Dufresne also had concerns. Among other things, she informed Parents that the text leveling system that CL was using did not conform to the system used by Reading Recovery. Additionally, CL informed Dr. Dufresne that she (CL) had not completed the continuing education necessary to maintain her Reading Recovery certification. Dr. Dufresne offered to make additional consultation and training available to CL, but CL declined the offers. (Mother, Dufresne)
34. Parents did not communicate either Dr. Dufresne’s concerns about whether CL continued to meet Reading Recovery requirements, or their own misgivings about CL’s service delivery to the School during the time CL was working with Student.
35. Additionally, Parents began questioning whether the relationship between CL and Student was conducive to his learning. Parents were distressed to hear reports that CL had told the school psychologist, EF, as well as Dr. Dufresne, that CL thought Student had fetal alcohol syndrome.10 CL reported that Student was beginning to have behavioral issues during sessions with CL, including arguing, sulking and refusing to read. (Mother)
36. According to a document entitled “Notes on [Student] September 18, 1008 [CL] Reading Teacher” (S-60), CL noted that Student was reading at an early first grade level, i.e ., DRA level 3 and levels 3-4 in Reading Recovery. The document further indicates that CL was reading to [Student], trying to “help him find books he loves.” CL indicated that Student had “very, very low self esteem around reading,” and that he was “difficult to motivate.” She elaborated that Student neglected visual information, “invents text,” refused to look closely at words when asked, refused to acknowledge mistakes, was “resistant and uncooperative during lessons, will not try, behavioral issues, uncooperative, surley [sic] manner and expression.” (S-60)
37. Later in the fall of 2008, CL attended a Child Study meeting at which Student’s needs were discussed. She expressed to the meeting that she felt Reading Recovery was not appropriate for Student because it required a level of self-correction that Student had not yet attained. Principal RM responded that the School was obligated to fulfill its portion of the Agreement. Parents were not informed of the Child Study meeting or of CL’s opinion of Reading Recovery for Student. (Mother)
38. In a “check-in” meeting held on or about September 26, 2008, attended by Parents and School staff working with Student, as well as at other times, tutor CL expressed concern that Student’s Reading Recovery level was lower than what Dr. Dufresne had stated, and that Student needed a different type of program to remediate his deficits in phonemic awareness.
39. On the other hand, Parents expressed a preference for de-emphasizing phonics instruction, stating that it had failed to help Student in the past and was highly stressful. (Mother, S-26)
40. On or about October 28, 2008, CL sent Parents a note stating that Student had been uncooperative during the reading session, and was covering his ears, sulking, crying, or yelling. Mother testified that this was not Student’s usual behavior. Parents saw that the book Student was asked to read that day was about a child who witnesses his caregiver grandfather be knocked unconscious after falling off a ladder, leaving the child “alone.” The book contains a picture of the grandfather lying on the ground, unconscious. (The child later dials 911 and the grandfather is rescued). (Mother, EF) Parents felt that this choice of books was traumatizing to Student, in light of recent tragedies in the community, and some of Student’s personal history and fears. (Mother)
41. On November 4, 2008, an incident occurred which ruptured the relationship between Parents and CL. In brief, Mother witnessed CL taking Student to the principal’s office because he had not been cooperating with his Reading Recovery lesson. Mother testified that shortly thereafter, in the school corridor, CL spoke to Mother loudly and angrily, saying that Student had many disabilities and major behavior problems, refused to work for all teachers, and would need services for many years. Mother testified that CL also accused Parents of destroying the school. (Mother) No other witnesses either corroborated or refuted Mother’s testimony.11
42. As a result of the incident described above, by letter of November 4, 2008, Parents withdrew permission for Student to receive Reading Recovery from CL. Neither CL nor any other School staff member provided Reading Recovery after that date. (S-32, Mother) It is undisputed that CL provided Student with a total of 21 Reading Recovery sessions between September 12 and November 4, 2008. (Mother)
43. Because Parents had misgivings about CL’s delivery of Reading Recovery almost from the commencement of services, they retained Dr. Dufresne to provide additional Reading Recovery sessions at home, after school. Starting in late September 2008, Dr. Dufresne provided approximately one session per week. Dr. Dufresne began meeting with Student twice weekly in mid-November, after CL’s services terminated, and continued until mid-December 2008. (Dufresne)
44. Dr. Dufresne believed that Student made progress with her during this period, reaching Level 16 and 17 books by mid-December. (Dufresne)
45. As noted above, between September and December 2008, Student was receiving both speech/language services and specialized reading instruction concurrently with the Reading Recovery lessons from CL and Dr. Dufresne, pursuant to his IEP.
46. In October and November 2008, the School conducted its three-year evaluation of Student consisting of psychological, educational, and speech assessments.
47. The speech-language evaluation, conducted by AE in November 2008, revealed that Student’s overall language comprehension ranged from low average to above average. He had many areas of strength, including naming/labeling vocabulary (95 th percentile), critical thinking, problem-solving and interpersonal skills. He had weaknesses in grammar and phonological awareness. AE concluded that Student needed work with sound categorization, blending syllables and words, segmenting parts of a word, and sound deletion and manipulation activities, with phonological awareness goals coordinated with other reading goals. (S-33)
48. The speech therapist, AE, who had worked with Student since he was in preschool, testified that her greatest concern was his “significant weakness in [the] area of phonological awareness,” which was related to Student’s early speech/language delays and articulation problems, and made both reading and writing laborious for Student. AE elaborated as follows:
[A] lot of those concerns really relate back to [when] he was a late talker and he had a language delay. And those are risk factors for later literacy problems. So if you have a history of speech language [sic] that puts you at risk for literacy problems. And the reason for that is that a child with speech sounds difficulty as [Student] had, they’re going to have deficits in phonological awareness, which is really related to reading. (AE, Tr. II, p. 79)
49. AE strongly recommended that Student receive explicit instruction in phonemic and phonological awareness in both speech/language therapy and in the classroom, and should receive reading instruction with a reading program that is “direct, sequential, multisensory…[with]…an emphasis on phonological awareness as one of its key components…” such as Wilson, Project Read, or Orton-Gillingham. AE felt that such a reading program, along with instruction in fluency and comprehension, should be a part of a comprehensive, balanced literacy program provided in both regular and special education settings. AD recommended collaboration on language and literacy instruction by the speech-language therapist and classroom teacher. (AE)
50. The classroom teacher assessment, conducted by PD, noted that at the end of first grade, Student’s oral reading fluency as measured by the DIBELS was 21 words per minute, which did not meet the grade level goal of 43 – 92 words per minute. In September of second grade (September 2008), Student was reading at DRA Level 3, which is a beginning first grade level. By late November 2008, Student’s independent reading was at DRA Level 10, which is approximately mid-first grade level. Student had trouble linking letters to sounds, often substituted one sound for another, and had trouble using word chunks to decode. Student created and dictated imaginative stories with “humor and depth” when an adult scribed for him, but found writing down his thoughts himself to be laborious. Student had a weak memory for sounds and symbols, which also affected his ability to read and to express himself orally. (S-34)
51. The classroom teacher noted that behavioral issues prevented Student from learning at his full potential. Like Dr. Dufresne, the teacher found that Student was very aware of his shortcomings, and sensitive to actual and perceived criticism, which would cause him to shut down and refuse to work, become defensive and argumentative, challenge limits, and occasionally become aggressive with peers. (PD, S-34)
52. AD, Student’s special education teacher, conducted formal educational testing, consisting of the Woodcock-Johnson III Tests of Achievement (WJ-III), Gray Oral Reading Test (GORT-4), Test of Word Reading Efficiency (TOWRE), and a DIBELS progress monitoring check. AD also reviewed work samples and records. (S-35)
53. Student’s overall achievement level as measured by the WJ-III was in the “limited” range for grade 2.2 at the 9 th percentile, with wide variation among skill areas. Student had significant strengths in Listening Comprehension, Broad Math, Brief Math, and several math subtests. His scores in these areas ranged from the 69 th percentile to the 91 st percentile. Student had strong general ability to learn and retain concepts and information, and to understand and derive meaning from oral language and pictures, and also had clear strengths in math. (S-35).
54. In contrast to his areas of strength, Student’s skills related to reading and language were “significantly compromised.” (S-35) His percentile rankings on the WJ-III were as follows: Broad Reading—8 th %ile; Basic Reading Skills—11 th %ile; Broad Written Language—1 st %ile; Reading Comprehension—7 th %ile; Academic Skills—17 th %ile; Academic Applications—14 th %ile; Sound/Letter Knowledge– 21 st %ile. (S-35)
55. On the GORT-4, Student scored at the first percentile for rate, the second for accuracy and fluency, and the ninth for comprehension, indicating that his ability to fluently read connected text was below the first grade level in early second grade. Student used known sight words and his strong reasoning skills to make sense of passages, but he had no strategies for reading unknown words. (S-35)
56. On the TOWRE, Student demonstrated stronger ability to read sight words than to decode. The DIBELS scores revealed that in May of first grade, Student read a first grade passage at 21 wpm. In fall of second grade, he read a second grade passage at 18 wpm. The average scores for both tests are above 40 wpm, so that both scores are significantly below grade level. (S-35)
57. AD reported that at the time of the evaluation, she had been working in the general classroom with Student 2×30 minutes per week on phonics and word recognition. She observed that Student loved books despite difficulties with reading, listened intently to stories, followed closely, and commented on plot and characters. He had difficulty, however, with blending sounds, reading digraphs, and decoding chunks, syllables, and CVC words. He relied on interest, prior knowledge, and reasoning ability to make sense of reading material. (AD, S-35)
58. AD concluded that Student would benefit from a “consistent, multi-sensory, sequential reading program” so that his reading instruction could “integrate the approach that emphasizes meaning and comprehension (whole words and words in context) with a “ground-up approach.” (S-35) Ms. D. testified that both she and other TEAM members found Student’s most pressing needs were to improve phonological awareness, address his anxiety about learning, and improve his ability to rapidly recognize letter patterns. (AD)
59. EF, who performed Student’s initial psychological evaluation when Student was in preschool, also conducted the psychological assessment for the re-evaluation. This assessment consisted of observation, parent and teacher interviews, standardized testing, and behavior rating scales. EF found that Student had made considerable progress in the three years since the last evaluation. Student demonstrated strongly average verbal and non-verbal intellectual functioning, and strong learning ability in a meaningful context. His weaknesses were all in skills used for reading and writing: auditory working memory, rapid naming, sound-symbol relationships, and graphomotor speed. (S-36) Like the other evaluators, the psychologist testified that emotional and behavioral issues interfered with Student’s learning, and would need to be addressed in the teaching context. EF further testified that Student needed a systematic, sequential, explicitly taught program to address his clear phonemic deficits, and mentioned Wilson, Orton-Gillingham, and Lindamood-Bell as examples of appropriate programs.
60. After TEAM meetings in December 2008, the School proposed an IEP calling for placement in the general education classroom with 2×15 minutes/month each of consultation services from the school psychologist and special education teacher, 2×30 minutes/week of pull-out speech/language therapy with AE and 5×45 minutes/week of reading instruction from AD. (S-40)
61. This IEP reflected a TEAM determination that Student had a specific learning disability affecting basic reading skills, reading fluency, and written expression. The IEP contained one speech therapy goal, to improve expressive language, with a focus on generating sentences with correct grammatical forms. There were two goals in English Language Arts: improvement in reading fluency, sight word recognition, and recognition of syllable types (Goal #1) and improvement in phonological awareness, starting with syllable awareness. The IEP provided for a summer program of 5×50 minutes/week of reading services for five weeks. (S-40).
62. Accommodations included a positive behavioral support plan to address non-compliant and argumentative behaviors. TEAM members felt that these behaviors were an expression of Student’s anxiety about learning. (AD) The behavioral support plan was to be developed by the school psychologist and classroom teacher, and shared with Parents. (EF)
63. Specialized instruction in the general classroom included focused work on phonemic awareness coupled with a variety of other reading strategies. Additionally, the IEP called for individual or small group “direct, sequential, multi-sensory” reading instruction on a pull-out basis (S-40)
64. Parents partially rejected this IEP, but accepted the proposed goals and services on January 12, 2009, and implementation began at that time. On February 5, 2009, the School issued a revised IEP which added provisions for weekly communication from the classroom teacher as well as for having the special education teacher send home books and games. Parents accepted the IEP and placement in full on March 10, 2010. (S-41)
65. Pursuant to the IEP, the special education instructor, AD, began individual reading instruction with Student in approximately mid-January 2009. (AD) At around the same time, Student’s private biweekly private Reading Recovery sessions with Dr. Dufresne were discontinued. (Dufresene)
66. AD used the Wilson reading program with Student. Wilson is a direct, sequential, multi-sensory reading program which fits the description of a reading program called for in the IEP. Ms. D. is certified to provide Wilson instruction at the Student’s level. In addition to Wilson, AD also worked on other reading and writing activities with Student. She spoke with Student’s classroom teacher approximately daily and sent monthly written progress notes to Parents. (AD)
67. Because AD, like virtually all individuals who worked with Student, found that Student’s anxiety over performing new or difficult tasks was a major obstacle to his progress, she used a positive incentive system to reward Student’s participation and cooperation. As AD became more familiar with Student, she refined the incentive system to make it interesting and motivating for him. (AD)
68. AD felt that Student enjoyed the incentive system, and used it appropriately. He gradually increased his willingness and ability to tackle challenging tasks, including phonological awareness activities. AD felt that Student was comfortable with her generally. (AD)
69. According to School progress reports for second grade, Student made progress in his IEP goals for reading and phonemic awareness. The report dated February 9, 2009 stated that Student was responding positively to daily reading instruction, less likely to express anxiety and distress over expectations, and beginning to work through his frustration and resistance to decoding tasks. He was “breaking the habit of guessing” at words. (S-38). Progress notes from AD to Parents for March and April 2009 listed skills, materials and books being used and stated that Student was making “steady progress,” adapting to the routine of pullout sessions, and working well for most of the 45 minute-session. Student had strength in his ability to read, spell, and recall sight words. He still was frustrated when asked to read a word that was difficult to sound out and sometimes did not follow teacher direction for doing tasks. AD was working on ways to help Student cooperate. In April 2009, Student’s DRA levels were 13-18 for independent or instructional reading, which indicates that he was working on texts at approximately the mid first grade level. (S-42)
70. In or about February or March 2009, Parents became concerned that during pullout reading sessions with AD, Student was “exhibiting behaviors that only had occurred when he was being asked to really kind of focus on phonics.” (Mother) Parents concerns were based on occasional informal conversations between Mother and AD in which AD reported that Student had had a “rough day” with her, or that they had to end a session early. On the other hand, Student never complained to Parents about his meetings with AD, or asked to discontinue them. (Mother)
71. On or about May 8, 2009, Parents informed the principal, RM, that they no longer wanted Student to receive services from AD, and that May 2009, by letter to the Principal, Parents withdrew their consent for Student to work with AD. The record does not state their precise reasons for doing so. The record does indicate, however, that Parents had misgivings about the appropriateness of Wilson for Student. Additionally, Father requested an opportunity to observe Student in a lesson with AD, but the parties were unable to reach agreement on the conditions for the observation. (AD, RM, S-53)
72. Student stopped receiving services from AD after approximately May 8, 2009.12 (AD)
73. The School’s year-end progress reports, issued in late May and early June 2009 indicated that Student had made “steady progress” in his reading goals.13 Before AD’s services were terminated, Student had reduced his anxiety over learning new material, was increasingly able and willing to decode new words, and generally was beginning to accept and tolerate the uncertainty involved in all new learning. Between January and May 2009, Student’s on-task behavior in 1:1 reading had increased from 25% to 75%. (S-50)
74. Regarding benchmarks, Student was able to decode all 72 words on the Wilson Sight Word List, and was also able to read the words in context. He had made very good progress with blending and segmenting sounds in closed syllable words, progressing from inability to perform this task to being able to read these words from lists and controlled passages with 95% to 100% accuracy. (S-50).
75. On May 21, 2009, at Parents’ request, Dr. Dufresne conducted a “Literacy Assessment” of Student consisting of Clay’s Observation Survey of Early Literacy Achievement as well as several informal reading tasks. Dr. Dufresne found that Student was only able to read a Level 2 (preprimer) text independently. (Dr. Dufresne’s report did not indicate the leveling system used). He could read 10 of 20 sight words commonly used in first grade. On the test of Hearing and Recording Sounds in Words, Student heard 28 of 37 phonemes.
76. Dr. Dufresne concluded that Student was about one year below grade level in reading and writing. He attempted to sound out words letter by letter but was often unsuccessful when there was no concurrent focus on the meaning of the word. He could analyze sounds in small words, but was not able to hear or record complex sounds. He had a limited core of words he could write easily and quickly. Dr. Dufresne recommended “daily intensive reading support from a trained Reading Recovery teacher” to help Student develop a “literacy processing system.” Dr. Dufresne stated that Student needed to use all sources of information (pictures, meaning, etc.) to figure out unknown words and to decode using “large known chunks” instead of letter by letter. She concluded that Student “has some parts in place, but he needs help in learning how to put the parts together into a fast and efficient processing system.” (P-10, Dufresne)
77. Dr. Dufresne conducted another reading assessment on June 3, 2009, in which she administered Fountas and Pinnell Benchmark reading, and had Student read several leveled books, work with magnetic letters, and write a short story. Student was able to read text leveled at Level 18/J,14 which corresponds to early second grade, with some errors. His errors did not make sense in the context of the story and Student did not attempt to self-correct. Student was able to read most of a list of 100 second-grade sight words, quickly and accurately. He wrote a very short story with much prompting. He quickly and correctly wrote many common sight words, and used good phonetic substitutions for unknown words. Dr. Dufresne concluded that Student was working about one year behind grade level. When reading on his own, he was overly reliant on visual information to figure out unknown words, and not also checking if the word made sense or sounded right. (P-4)
78. Dr. Dufresne concluded that Student had made about one year’s progress in both reading and writing, in the year since she had last evaluated him. She felt that his progress had slowed down considerably since around January 2009, however, and that he had made only “limited” progress since then. Specifically, Dr. Dufresne reported that by mid-December 2008, Student was about six months behind his grade level in reading, at an early second grade level (Level 17/I). By May 2009, Student as at level 15-16-I, about 9 months behind his peers. (P-4)
79. Dr. Dufresne attributed the limited progress to Student’s overreliance on letter-by-letter sounding out of words, which was an area of weakness for him and a task that he did not do very successfully, coupled with Student’s giving up other strategies that he had used previously and which worked for him. (Dufresne, P-4)
80. Dr. Dufresne recommended resumption of tutoring in order to rebuild Student’s strategies in addition to phonetic decoding and accelerate his reading progress.
81. Dr. Dufresne clarified that she did not think that Reading Recovery per se was required for Student as of the time of hearing, given that Student was no longer a first grader. Her position was that Student’s reading instruction should not rely solely or excessively on having Student work from the “ground up,” i.e., building from letter-sound correspondence to reading text, in a strictly sequential manner. She had concluded that this approach required Student to work primarily in his area of weakness, where he had not been successful, and was not productive. Instead, Dr. Dufresne felt that Student’s reading instruction should build on Student’s existing “processing system,” i.e., his ability to use several sources of information in order to read text. She felt that Student was an individual who could derive phonological knowledge from reading text better than from being taught phonics as a precursor to text, and testified that some research supported this methodology for children like Student. (Dufresne)
82. On the other hand, Dr. Dufresne also testified that to her knowledge, she and AD, Student’s special educator, were essentially “on the same page” regarding Student’s reading instruction, in that AD also believed that Student should work on strategies in addition to letter-by-letter decoding.15 (Dufresne)
83. Dr. Dufresne’s observations about Student’s non-utilization of a variety of strategies were consistent with those of the second grade classroom teacher, PD. In a “Teacher Observation Guide” for June 2009, the classroom teacher noted that Student was “still ‘learning how to read.’ He will need to be taught to use all 3 cueing systems: meaning, structure, and visual, as he reads unknown words. He needs to learn to self monitor and self correct independently. Modeling will be very important to [Student].’ (S-56)
84. At Dr. Dufresne’s recommendation, Parents hired a Reading Recovery trained teacher, BC, to tutor Student in reading three times per week during the summer of 2009, and several times weekly during third grade, after school. According to Parents and Dr. Dufresne, Student’s progress accelerated again once this tutoring had begun. (Dufresne, Mother)
85. Dr. Dufresne conducted another literacy assessment on September 16, 2009, after Student had received several months of outside tutoring. Using the Fountas and Pinnell and Rigby Benchmark reading assessments, Dr. Dufresne found that Student had improved significantly since May 2009 in his reading, and was now reading texts at the mid-second grade level.16 Dr. Dufresne also observed that Student had greatly improved his ability to problem-solve and strategize with difficult text. On the other hand, Student still had difficulty with writing. Dr. Dufresne recommended that Student continue to work with a “highly trained teacher” to develop “a strong strategic processing system. (P-4)
86. Meanwhile, Student began third grade in August 2009. His assigned classroom teacher, AC, has a Master’s degree in Curriculum and Instruction and Literacy, and has taken coursework in various reading methodologies. Additionally, AC has participated in professional development training in the area of reading. (AC, S-78)
87. AC’s observations and assessments of Student’s reading and writing skills were consistent with those of prior teachers, evaluators, and Dr. Dufresne. Specifically, AC found that Student was bright, enthusiastic, and capable. Student had many strengths in the areas of reading and literacy, including comprehension, vocabulary, and growing fluency.
88. AC’s formal assessments, included the DIBELS (to test fluency) the DRA, and the Quick Phonics Screener. According to the DIBELS, Student was in the “at risk” category. The DRA indicated that Student’s “Instructional” reading level was at about DRA Level 12, which is in the first grade range. The Quick Phonics Screener indicated that Student still did not have automatic ability to decode VC and CVC syllables. (AC, S-71)
89. Although Student had very good compensatory strategies that allowed him to absorb much content, Student was continuing to guess at words (based on the first letter and length of word). Based on the assessments and her day-to-day experience, AC felt that Student needed continued specialized instruction in decoding so that he could “move out of this…first grade level that he’s stuck in…” (AC)
90. AC testified that this instruction needed to come from a skilled special educator, rather than from a regular education reading specialist, because Student has a diagnosed learning disability. (AC)
91. Per the Parents’ revocation of consent from the prior school year, Student had not received instruction from AD as of the hearing in this matter, but was continuing to receive twice-weekly after-school tutoring with BC, the private Reading Recovery tutor hired by Parents. As of the conclusion of the hearing, Parents were satisfied with the instruction and services being provided by the School within the third grade, with the exception of the absence of Reading Recovery tutoring funded by the School. (Mother).
FINDINGS AND CONCLUSIONS
The FAPE Standard
There is no dispute that Student is a school-aged child with a disability who is eligible for special education and related services pursuant to the IDEA, 20 USC Section 1400, et seq ., and the Massachusetts special education statute, G.L. c. 71B (“Chapter 766”). Student is entitled, therefore, to a free appropriate public education (FAPE), that is, to “meaningful access” to public education. Id. To meet the “meaningful access” requirement, schools must provide each eligible student with an IEP and services that are tailored to his or her unique needs and potential, and designed to provide ‘effective results’ and ‘demonstrable improvement’ in the educational and personal skills identified as special needs.” 34 C.F.R. 300.300(3)(ii); Lenn v. Portland School Committee , 998 F.2d 1083, 1086(1 st Cir. 1993), citing Roland M. v. Concord School Committee , 910 F.2d 983 (1 st Cir. 1990), cert. denied , 499 U.S. 912 (1991).
The IEP must be “reasonably calculated to enable the child to receive educational benefits.” Lenn, at 1086; Lessard v. Wilton-Lyndeborough Cooperative School District , 518 F. 3d. 18, 23 (1st Cir. 2008); Bd.of Ed.of Hendrick Hudson Central Sch. Dist. v. Rowley , 458 US 176 (1982). The “educational benefit” referred to by the court must be more than trivial, in that the IEP and services must be calculated to enable the student to make “meaningful and effective progress commensurate with his or her educational potential” Irving Independent School district v. Tatro , 468 U.S. 883, 891 (1984) ; Lessard, at 29; 603 CMR 28.01(3). On the other hand, while a student’s individual potential is one factor in determining whether an IEP and services meet the FAPE standard, an IEP need not be designed to maximize that potential, as long as it is individually tailored to provide meaningful educational benefit. Rowley , Roland M ., supra .
Further, while the opportunity for meaningful parental participation in the development of a student’s IEP is an element of FAPE, the law does not grant parents the right to dictate or control the contents of the IEP or the way in which the school district implements it. Rather, the law grants schools a great deal of discretion in all aspects of IEP development and service delivery.
In particular, and of relevance to this case, school districts generally have the right to control assignment of teachers and related service providers, as long as these individuals have the requisite credentials for their positions. In Re: Ipswich Public Schools , 46 IDER 296 (Berman, 2006); Duxbury Public Schools , 13 MSER 25 (Figueroa, 2007). Additionally, parents do not have the right to compel a school district to use a particular methodology or program, and courts generally do not disturb schools’ choice of methodology. Lachman v. Illinois State Board of Education , 852 F.2d 290, 296 (7 th Cir. 1988); cert. den ., 488 US 925 (1988). Moreover, the educational services chosen by the school need not be “the only appropriate choice, or the choice of certain selected experts, or the child’s parents’ first choice, or even the best choice,” as long as the IEP is reasonably calculated to provide educational benefit. G.D. v. Westmoreland School District, 930 F.2d 942 (1 st Cir. 1991).
Burden of Proof
In a due process proceeding under the IDEA, the party seeking a change in the status quo bears the burden of proof. Schaffer v. Weast , 546 U.S. 49, 44 IDELR 150 (2005). Thus, a parent who challenges the appropriateness of a school’s IEP must demonstrate by a preponderance of evidence that the IEP was not reasonably calculated to provide the child with FAPE. Conversely, if a school seeks to change the status quo (for example, to change a child’s placement for discipline-related reasons), the school bears the burden of proof.
Here, both the School and the Parents have filed hearing requests seeking particular relief from the BSEA. The School seeks a finding that Parents denied Student a FAPE during the 2008-2009 school year when they revoked consent for the specialized reading instruction that was called for in the fully-accepted IEP for the period from February 2009 to February 2010. Parents response was that this specialized instruction was not appropriate for the Student. In addition to denying the School’s assertions, Parents have alleged that the School breached the Settlement Agreement of 2008 by using a Reading Recovery teacher who was not qualified to teach this program, putting them in a position to have to pay for private Reading Recovery services. Parents seek reimbursement for these services. Parents further seek prospective funding for Reading Recovery programming for at least the duration of the IEP in effect at the time of hearing, as well as for a subsequent period.
Under the principles set forth in Shaffer v. Weast , the School has the burden of persuasion on the issue of whether the Parents deprived the Student of FAPE by withdrawing consent to implementation of one of the two services contained in a fully-accepted IEP. The Parents have the burden of proving that the School breached its agreement, as well as that the School should fund prospective Reading Recovery services.
After careful consideration of both the documentary evidence and testimony, I conclude that the overwhelming weight of the evidence is that the specialized reading instruction specified in the accepted IEP and as provided by AD for a short period of time was reasonably calculated to provide the Student with FAPE. The School has not demonstrated, however, that Parents’ withdrawal of consent for that service rises to the level of a denial of FAPE.
On the other hand, the Parents have not proved either that the School committed a breach of the settlement agreement, or that the School should provide Student with prospective Reading Recovery services. My analysis follows.
The parties in this case have no real dispute over Student’s profile and learning needs. Both parties acknowledge that Student is a bright, enthusiastic, very likeable child who loves learning and has much ability to do so. They do not dispute that Student has a history of delays in expressive language, and more recent diagnosis of a specific learning disability (dyslexia) affecting his reading, writing, and spelling.
The parties agree, and the record demonstrates, that underlying this diagnosis is a significant weakness in phonics/phonemic awareness, coupled with anxiety leading him to become argumentative, oppositional, or simply to shut down and reuse to work when asked to do work in his areas of need (e.g., work on phonics). Positive behavioral supports such as incentives and rewards for staying on task, have been very helpful to Student.
The core of the dispute between the parties is over the appropriate reading methodology for Student. The School recommends a highly structured, sequential, rules-based methodology such as Wilson Reading, coupled with additional literacy strategies (such as those taught in the general classroom) and a system of incentives to address Student’s anxiety about working on difficult areas. Parents take the position that an over-emphasis on phonics has not and does not help him learn to read. Rather, such a focus on Student’s long-standing area of weakness simply stresses Student, causes him to shut down, and undermines his love for books and reading. Parents feel that Student needs an approach such as Reading Recovery, which, they claim, has enabled Student to read actual text of increasing difficulty, and is allowing him to extract phonemic awareness from meaningful text.
As the parties have been advised from the start of the Hearing in this matter, the choice of methodologies is within the School’s purview. Parents have no right to dictate that the school district use the Parents’ preferred methodology or approach, especially given that Wilson and similar methods are specifically designed for children with Student’s profile. Moreover, the evidence is overwhelming that Student needs intensive work in phonemic awareness as a significant part of his reading program. The School’s witnesses, some whom have worked with Student since preschool, support this recommendation without contradiction. Even Parents’ expert witness, Dr; Dufresne, testified that Student needed to work on phonemic skills in the context of general literacy education. Ultimately, Dr. Dufresne’s only difference with the school’s witnesses is one of degree and emphasis. That Student may also have benefited from Reading Recovery does not negate the benefit he also was receiving from the program provided by the School.
Finally, the evidence also is essentially unrefuted that Student was beginning to develop phonemic awareness and phonics skills as a result of individual work with AD during 2008-2009. AD testified that Student was slowly beginning to acquire such skills in his work with her. Importantly, Student was learning how to work through his anxiety, using the positive supports that AD was developing; this is critically important for helping Student be available for learning. Under all of the circumstances, it would be unrealistic to expect a dramatic effect on Student’s performance after only a short period of working with AD, especially given the need to work on Student’s anxiety level, as discussed above. (Even Dr. Dufresne acknowledged that Student was making progress during that period, however.
Based on the foregoing, it is clear that the School’s program as outlined above was appropriate for Student. Moreover, since that program was embodied in a fully accepted IEP, it must be deemed appropriate for the period it was in effect.
The fact that the IEP was appropriate does not mean that the Parents’ revocation of consent for Student to work with AD constituted a denial of FAPE, however. Although Student needed work on phonemic skills to support his acquisition of reading, this work constituted only part of AD’s work with Student, and the individual sessions with AD were not the only instruction that Student was receiving in reading and writing. Student also received reading-related instruction, as well as individual and small group support for literacy acquisition in his mainstream classroom as well as with the speech/language therapist. Additionally, Parents were privately supplementing the school curriculum with tutoring from a Reading Recovery instructor.
While it likely would have been beneficial to Student to continue working with AD, the withdrawal of permission for a single service should not be deemed a denial of FAPE where, as here, the student is bright and capable, has good attendance, is very able to benefit from instruction in the mainstream classroom, and is receiving in-class accommodations, speech/language therapy and parentally-provided tutoring.17
While the School has not met its burden of persuasion on the issue of parental denial of FAPE to the Student, Parents have not shown that Student needs Reading Recovery services to receive FAPE. According to Mother and Dr. Dufresne, Student made some gains during the summer of 2008 when he received Reading Recovery tutoring, although it appears that he was unable to fully generalize this progress in the classroom or with CL. The nature and amount of gain is difficult to assess, however. Much of the evaluation of Student’s progress in Reading Recovery depends on running records and assessment of Student’s ability to read leveled texts. With respect to the latter, Parents and Dr. Dufresne believed that CL was using the leveling system correspondent to the DRA rather than to Reading Recovery.
Mother and Dr. Dufresne did testify, without contradiction, that Student did make progress during the periods when he was receiving Reading Recovery instruction. Specifically, both saw Student read increasingly complex texts, with growing confidence and enjoyment. It cannot be determined from the record, however, whether these gains can be attributed to the appropriateness of Reading Recovery, per se , the effect of school-based services, the Parents’ consistent reinforcement of reading instruction at home, the individualized tutoring from Dr. Dufresne, who is a highly knowledgeable and experienced reading and literacy specialist, or some combination thereof. Indeed, the record indicates that Dr. Dufresne herself had to modify the Reading Recovery format in a manner similar to AD to accommodate Student’s anxiety over challenges in his areas of vulnerability.
In any event, as Dr. Dufresne testified in detail, Reading Recovery is a regular education “catch-up” intervention, not designed for children beyond the first grade or early second grade level, and not intended to remediate learning disabilities. Dr. Dufresne herself testified that she was not recommending Reading Recovery for Student at the time of hearing, and was in essential agreement with AD on the appropriate services for Student. At most, Dr. Dufresne and the School differed over the degree of emphasis that should be placed on phonemic awareness training, and whether or not such training should be “sequential.” When there is so little objective difference in the views of the School and the Parents’ expert, there would be no basis for a decision that Reading Recovery is necessary for Student to receive FAPE, even if the dispute here was to be characterized as over a “placement” or “service” rather than a methodology. Further, as has been stated elsewhere in this Decision, where the School’s chosen methodology is solidly grounded on unrefuted diagnosis of the Student’s area of weakness, there is no basis for the BSEA to disturb the School’s decision.
Parents also have not demonstrated that the School violated the Settlement Agreement of 2008. The document clearly states that the School would use its Essential Skills teacher, who was the only Reading Recovery teacher on staff, to provide Student’s additional eleven weeks of Reading Recovery services. This teacher, CL, was qualified and experienced in teaching Reading Recovery, and was available to provide the service agreed to. While the teacher clearly made some questionable comments about Student and choices in reading material, and may have had reservations about the appropriateness of Reading Recovery, these factors do not arise to the level of a breach of the settlement agreement.
Finally, Parents have not proved that the School failed to implement the accommodations listed in Student’s IEP. The record contains unrefuted documentation that the accommodations were, in fact, provided.
The Order issued on April 28, 2010 in this matter, and effective that date, is incorporated by reference and is reproduced below, verbatim for convenience:
1. The specialized reading services contained within the IEPs for December 18, 2008 through December 17, 2009 (School’s Exhibits S-40 and S-41) were appropriate, such that the IEPs were reasonably calculated to provide the Student with FAPE.
2. The Parents’ revocation of consent for these reading services did not constitute a denial of FAPE for the Student.
3. Unless the Parents and the School have agreed otherwise since the close of the record in this matter, the School is not required to reimburse Parents for, or otherwise fund, Reading Recovery or other privately-obtained reading services, up to and including the issuance date of the final Decision in this matter.
4. The School did not breach the settlement agreement executed in August 2008 (“Settlement Agreement”) as alleged by the Parents. Therefore, the School is not required to reimburse Parents for the cost of any private reading instruction they obtained after November 2008 or between the date of execution of the Settlement Agreement and November 2008.
5. The School did not commit procedural violations that caused Student to be deprived of a FAPE.
By the Hearing Officer:
“Xenon” is a pseudonym used to prevent Student from being readily identifiable based on the identity of the school district.
The “Parents” actually are relatives who have served as Student’s guardians, with custody, for several years. Their authority to make educational decisions for Student is undisputed. To further protect Student’s anonymity, they will be referred to as “Parents”
Student originally entered as a kindergartner, but Parents and the school agreed to have him spend another year in preschool because of his young age and related reasons.
Dr. Dufresne retired in 2009.
Dr. Dufresne is a certified Reading Recovery teacher and teacher-trainer. She testified at length about the training and supervision of Reading Recovery instructors which involves intensive initial training, observation, mentoring, coaching and ongoing additional training in assessment, instruction, and data-gathering.
According to Dr. Dufresne, in Massachusetts, depending on the school district, lowest-performing 20% to 30% of entering first graders may be identified as needing Reading Recovery services.
Reading Recovery uses its own books, written at Reading Recovery Levels 1 through 20. Books at Level 1 typically have one line of text per page, paired with a picture. As the levels increase, the amount of text increases, and both the number of pictures and the degree of correspondence between the picture and the text decrease. Level 20 corresponds, roughly, with late first-grade. The numbered levels in the Reading Recovery system do not necessarily correspond to those of other leveling systems. (Dufresne)
As will be discussed elsewhere, Dr. Dufresne’s observations regarding Student’s shutting-down or acting out in the face of perceived failure were consistent with those reported by witnesses for Xenon. (EF, AD, AC)
CL’s resume does not indicate the number of years within the seven year total that CL taught Reading Recovery. (S-75)
EF testified that CL had, indeed made this statement to her, and that EF replied that Student was an intelligent boy with no evidence of fetal alcohol syndrome (FAS) (EF) It is undisputed that CL is the only provider who ever mentioned FAS in connection with Student, and there is no assertion by either party that Student, in fact, has FAS, or any other significant disability, other than the expressive language delays and specific learning disabilities described above.
Parents filed a complaint with the school principal over this incident, and the principal conducted an investigation, the results of which were not placed in evidence. The principal testified that witnesses provided a variety of descriptions of the incident. (RM)
The record does not indicate exactly when AD stopped meeting with Student. Most likely, the sessions stopped after May 8, 2009, following a tense conversation between Parent and AD.
Student also made progress in speech therapy, which is not at issue here.
The record does not indicate the leveling system used.
Dr. Dufresne had never observed a reading session with AD, or had lengthy conversations with her outside of TEAM meetings. (Dufresne)
In her May and June 2009 reports, Dr. Dufresne stated that Student was been reading at an early second grade level in May 2009. On the other hand, in her report of September 2009, Dr. Dufresne stated that Student had been at a late first-grade level in the previous spring. The record does not explain the significance of this discrepancy, if any.
Ironically, if Parents had withdrawn Student from all special education services, as opposed to just one service, there would be no BSEA jurisdiction to consider whether Parents had caused a denial of FAPE.