10/25/2014
A REVIEW OF DYSLEXIA CASES
DECIDED AT THE BSEA
Joseph B. Green, Esq.
Kotin, Crabtree & Strong, LLP
One Bowdoin Square
Boston, MA 02114
(617) 227-7031
FY 2013 BSEA Statistics
• 8,860 rejected IEPs received by the BSEA (up from 8,460
in 2012)
• 818 mediations conducted (down from 917 in 2012)
• 552 hearing requests filed (down from 582 in 2012)
• 30 full hearings resulting in decisions (down from 52 in
2012)
• 37 substantive written rulings (up from 23 in 2012)
Who Was the Prevailing Party?
Of the 30 full hearings that occurred, the district
won in 63% of cases
Parents (6 cases)
District (19 cases)
Mixed (4 cases)
LEA assignment (1 case)
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Representation
• Of the 6 cases in which parents fully prevailed:
• Parents had a lawyer in 5
• Parents appeared pro se in 1
• Of the 19 cases in which the district fully prevailed:
• Parents had a lawyer in 3
• Parents had a lay advocate in 2
• Parents appeared pro se in 14
• Of the 4 cases with mixed relief:
• Parents had a lawyer in 1
• Parents appeared pro se in 3
The district was represented by an attorney in all matters.
Dyslexia Cases: 2010
• Xenon Public Schools (pseudonym for district), BSEA
#09-7928, 16 MSER 178
• Parents lose on request for Reading Recovery instead of Wilson.
• Medford, BSEA #10-6403, 16 MSER 289
• Parents lose request for placement at Landmark.
• Pembroke, BSEA #10-6403, 16 MSER 289
• Parents lose request for placement at Beal Street Academy;
evaluations ordered.
• Belmont, BSEA #10-5170, 16 MSER 431
• Parent Wins Two Years Retroactive And One Year’s Prospective
Funding For The Student’s Placement at The Landmark School
Dyslexia Cases: 2011
• Hingham, BSEA #11-3762, 17 MSER 11
• Parents win reimbursement for Landmark tuition and prospective
placement.
• Pentucket, BSEA #11-5530, 17 MSER 150
• Parents win reimbursement for two years of Landmark tuition.
• Wellesley, BSEA #10-6553, 17 MSER 161
• Parents lose request for reimbursement or placement at Landmark.
• Andover, BSEA #12-0430, 17 MSER 338
• Parents win placement at Landmark.
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Dyslexia Cases: 2012
• Northampton, BSEA #12-0250, 18 MSER 57
• Parents lose request for placement at Curtis Blake.
• Pembroke, BSEA #12-0507, 18 MSER 284
• Parents win residential tuition and placement at Kildonan (NY)
because district could not create or locate a suitable languagebased program.
• School District (anonymous), BSEA #12-7316, 18 MSER
284
• Parents win reimbursement and placement for Landmark.
• Medford, BSEA #13-0006, 19 MSER 35
• Parents lose request for reimbursement and prospective funding at
Learning Prep.
Dyslexia Cases: 2013
• Chicopee, BSEA #1300380, 19 MSER 1 (Jan. 3, 2013)
• Parents lose request for placement at White Oak.
• Pembroke, BSEA #1310012, 19 MSER 299 (Oct. 31,
2013)
• Parents win claim for more resources in public school program.
• Triton, BSEA #1400006, 19 MSER 334 (Dec. 18, 2013)
• Parents defeat district’s request to end student’s eligibility for
special education services.
Dyslexia Cases: 2014
• Greenwood(pseudonym), BSEA #1403564, 20 MSER 130
• Parents win reimbursement for Carroll School tuition and possible
prospective placement
• To be continued…
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Dyslexia Cases: The Scorecard
• 16 dyslexia cases since 2010 (out of approximately 180
decisions)
• Parents were successful in 9 of 16 (56%)
In Re: Triton Public Schools
BSEA # 1400006 (Dec. 18, 2013)
• Eligibility dispute:
• The district filed for a hearing seeking an order that the student was
no longer eligible for special education services.
• Parents were pro se
Triton: Areas of Agreement
• The parties agreed on the following facts:
• The student had dyslexia
• The student was bright, hard-working, and actively engaged and
participating in the 6th grade curriculum
• The student used strategies to compensate for his learning
disabilities
• The student passed MCAS
• Compared to his regular education peers, student demonstrated
average reading abilities and just below average writing and
spelling abilities
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Triton: The Parties’ Positions
Triton’s position
Parents’ position
• The student is essentially no
• Student’s deficits in reading
different than a regular
education student, as
evidenced by his successes
in the classroom and on the
MCAS.
• It is a disservice to the
Student to separate him
from his regular education
classroom.
automaticity and fluency and
in phonological processing
will increasingly impact his
ability to learn as he
advances in school.
• Student requires specialized
remedial instruction to make
effective progress
commensurate with his
potential.
Triton: Parents’ Experts
• Speech-language pathologist
• Compensatory strategies will only take the student so far
• Phonemic decoding: 19th %ile (TOWRE)
• In the face of unfamiliar content or vocabulary, Student’s reading
accuracy and fluency decline, making it difficult for Student to “read
to learn.”
• “[F]or a student to be able to focus on the meaning of text,
mechanics of decoding must be automatic; otherwise, their
cognitive efforts are spent on the process of decoding. Because
[Student] is not automatic, he is at risk for comprehension
difficulties.”
Triton: Parents’ Experts
• Neuropsychologist
• Diagnosis of dyslexia
• Elision: 2nd %ile (similar to Triton’s scores)
• Phonological Awareness: 3rd %ile (similar to Triton’s scores)
• Pseudoword decoding: 16th %ile (down from the 25th %ile approximately
one year earlier)
• Without specialized instruction to address deficits in fluency and
automaticity, student was likely to “keep stumbling over words,”
would “have difficulty committing words to memory,” and “continue
to be a worse speller…than he is now.”
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Triton: Parents’ Experts
• Developmental Pediatrician
• The presentation of Student’s language deficits in school may be
subtle but the deficits themselves (and the implications on
Student’s learning) are not subtle, particularly in light of Student’s
substantial intellectual abilities.
Triton: Battle of the Experts
• “…I find that although Triton has put forth credible, unrebutted and
substantial evidence of Student’s various successes in school, this
evidence does not effectively rebut the testimony and reports of
Parent’s three experts that Student’s specific learning disability and
dyslexia is substantially limiting what Student currently is able to learn
in 6th grade.”
Triton: Findings & Conclusions
The Hearing Officer made the following findings:
Student has learning disabilities (a specific learning disability
and dyslexia) that preclude him from reading fluently;
his inability to read fluently substantially limits his ability to
read to learn new information this school year and very likely
will increasingly do so in each subsequent school year if
unremediated;
3) reading to learn is fundamental to Student’s education,
including the development of his educational potential; and
4) only specialized instruction will likely remediate Student’s
fluency deficit.
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On the basis of these findings, the Hearing Officer concluded
“that it would be premature (both educationally and legally) to
terminate Student’s eligibility.”
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In Re: Greenwood Public Schools
BSEA # 1403564 (July 25, 2014)
• Unilateral placement dispute
• Parents filed for hearing seeking reimbursement for Carroll School
tuition for 3rd grade (2013-2014)
• Student’s Profile:
• Three months into 2nd grade, district testing showed that Student :
• Could identify 22 of 26 letters, 22 of 26 sounds, and 6 sight words.
• Could not decode independently or use picture cues to identify
beginning sounds of words
• Was still working on basics in all areas of reading, including sounds,
encoding, decoding, segmenting, and sight words.
Greenwood: The Parties’ Positions
Greenwood’s Position
Partial inclusion program
would have met all of
Student’s needs.
Parents’ Position
Student had not made
effective progress in reading
since kindergarten, despite
numerous interventions, and
the proposed partial inclusion
program was insufficient.
Student requires a languagebased program across all
academic settings throughout
the day.
Greenwood: The Battle Lines
• The hearing lasted four days and resulted in a 40-page
decision.
• The district observed the student 4 times at Carroll.
• The district’s consultant, who created the proposed in-
district program and trained all of the teachers, testified
that she found “nothing positive” about Carroll.
• The district brought 11 witnesses to the hearing
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Greenwood’s Proposed Program
• The district described its proposed program as:
[A] team of individuals who provided support inside and outside the
regular education classroom, using consistent language and small
group/ whole group instruction for students requiring language–
based instruction. Whole group instruction in the inclusion
classroom was provided to the approximately 20 students in class, a
small fraction of whom carried a diagnosis of language–based
learning disability.
Greenwood: Peers
• The Parents’ neuropsychologist reviewed the IEPs of
potential peers for the Student’s 3rd grade year and found
that only 2 students were appropriate peers.
Greenwood: Parents’ Experts
• Parents’ witnesses
• Private neuropsychologist
• Head of Lower School at
Carroll
• Learning Specialist
• Parents
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Greenwood: Findings & Conclusions
• Greenwood was offering to place Student in a partial
inclusion program similar to what he had already
experienced, where he would not receive the amount and
intensity of language–based interventions recommended
by the neuropsychologist in a setting with similar peers.
• While the evidence is persuasive that the programs
offered in Greenwood are solid inclusion programs,
they are not the panacea for all students and
particularly herein not for Student.
Greenwood: Findings & Conclusions
• Before the unilateral placement, the district knew that
“Student was seriously delayed given his intellectual
abilities and that he required more than it was delivering
during the school day; that is, Student required a
language–based program and not just language–based
interventions within a large group setting with literacy,
reading and speech and language pull–out services.”
• Therefore, Parents were justified in placing Student at
Carroll.
Credibility: Greenwood’s Proposed Program
• “Greenwood’s argument at Hearing in April 2014 that [one
particular] Learning Center was the one intended for
Student in September 2013 is disingenuous and not
supported by the credible evidence. This decision
came later in the process.”
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Greenwood: Credibility of the District’s Consultant
• “[The district’s consultant] testified at length regarding her observations of
a stellar program in Greenwood in stark contrast to her grim observations
in Carroll. While she could think of nothing she would recommend to
improve the program in Greenwood, she struggled to find even one
positive thing to say about Carroll.”
• “The fact that she developed the Greenwood program (through her
private company), and that she uses the Greenwood programs as
exemplary models for other districts, compounded by the fact that she
trained, mentored and supervised many of the teachers and service
providers she observed (some of whom would be responsible to provide
services to Student) compromised the evidentiary weight that can be
afforded to her testimony.”
• “[The district’s consultant] has not evaluated Student and this combined
with her potential financial interest raised questions about her credibility.
As such, I do not find her testimony to be reliable regarding the
appropriateness of either the Greenwood or Carroll programs for
Student.”
Greenwood: Credibility of Parents’ Witnesses
• “In contrast, I credit the testimony of [student’s private
neuropsychologist], whom I found to be a knowledgeable,
experienced, neuropsychologist who demonstrated a solid
understanding of Student’s deficits and strengths, and
who offered an objective opinion.
• [The student’s learning specialist’s] evaluation and report
are also deemed to be reliable. Her observations of
Greenwood and Carroll were found to be balanced and
corroborated in part by [Greenwood’s reading specialist].”
In Re: Pembroke Public Schools
BSEA # 1310012
Pembroke’s Position
• Pembroke’s program
provided separate languagebased classes for all
academic subjects except
math and provided 1:1 or
1:2 reading instruction with
OG methodology.
• Student’s high grades and
access to the curriculum
meant that he was making
adequate progress and
required no additional
services.
Parent’s Position
• Student was appropriately
placed in Pembroke’s
program but the IEP did not
provide FAPE because it did
not include services
addressing the student’s
phonological awareness and
phonological processing
skills.
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Pembroke: Parent’s Expert’s Testimony
• A comparison of the Student’s test results over time
indicated that he was making insufficient progress in
phonological awareness and phonological processing. His
scores on standardized tests measuring phonological
memory and decoding had actually decreased over a twoyear period.
• Despite modest progress in the Student’s reading rate,
accuracy, and fluency, his skills nevertheless remained
well below expectations based on his “at least average”
academic potential.
Pembroke: Parent’s Expert’s Testimony
• Testing suggested, therefore, that the Student was not actually
making effective progress in his areas of need despite his good
grades and passing MCAS scores.
• The Student’s future progress in literacy skills would also be minimal
without additional, direct, remedial services and was particularly
concerned with the Student’s ability to make progress as he
encountered higher-level material in the remaining years of high
school and beyond.
Pembroke: Requested Relief
• The Parents’ expert specifically recommended:
• that the Student be evaluated with the Lindamood Phoneme
Sequencing Program (LiPS);
• that Pembroke provide intensive tutorial instruction in the amount
recommended by the LiPS evaluators;
• that the Student receive instruction with a reading fluency program
such as the Read Naturally program
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Pembroke: Findings & Conclusions
• Despite Pembroke’s objections to the LiPS program, the
Hearing Officer ordered the district to arrange for the
Student to be evaluated through the LiPS program and to
provide instruction in the type and amount that the
parents’ evaluator recommended.
In Re: Chicopee Public Schools
BSEA # 1300380 (Jan. 3, 2013)
• Chicopee involved a thirteen-year-old eighth-grade
student with solidly average cognitive abilities who had
been diagnosed with a language learning disability and
executive functioning deficits. She was first placed on an
IEP in second grade and had been in inclusion programs
since then.
• Issue: Whether the student was appropriately placed in an
inclusion program within the Chicopee Public Schools or
whether she required a substantially separate languagebased program such as that offered by the White Oak
School.
Chicopee: The Parties’ Positions
Chicopee’s Position
• Student has been making substantial
progress this school year in her
inclusion program, as well as last
school year when she was in a
comparable program. According to
teachers, Student is solidly within the
average range in each of her
classes, is engaged and interested,
and is accessing and participating in
her educational program
• Student’s homework and assignment
completion are uneven.
• Placement of Student in an out-ofdistrict, substantially-separate
educational program (such as White
Oak School) is unnecessary and
would be unduly restrictive.
Parent’s Position
• Student does not have full mastery over
academic skills, including reading, and is
approximately four years behind her peers.
• Student’s IEP goals are vague and her
accommodations implemented inconsistently
• Student has been bullied.
• She has been bounced from one program to
another by Chicopee.
• Chicopee does not have an appropriate
program for Student. Student requires an
out-of-district placement at a language-based
program.
• White Oak School, in particular, would
provide a “structured environment in a small
classroom setting with cross curriculum
foundation with experts in dyslexia and
executive functioning who can give [Student]
the intensive remediation to obtain a [FAPE]
to help her succeed in her life endeavors.”
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Chicopee: The Battle Lines
• Chicopee was represented by counsel and presented an
array of witnesses, including three regular education
teachers, three special education teachers, the
Coordinator of Special Education, and a private consulting
psychologist.
• The parent was unrepresented and presented the report
of a single expert who was not present at the hearing. The
evidence on the parent’s side of the case consisted of the
written report of that expert, plus testimony by the student
and her mother.
Chicopee: Parent’s Experts
• Parent had several evaluations and observations done.
• Her expert did not testify at hearing.
• The expert’s report stated,
• “School and testing reports paint a clear picture of a student who
has still not mastered basic late elementary school level skills in
math, spelling, written expression, reading comprehension and
organization, and who continues to show significant learning and
executive weaknesses.”
• Her recommendation was:
• “[Student’s] needs would be best met in a language-based program
for learning disabled students with average\above average
cognitive ability who do not have co-exiting social, emotional or
behavioral disorders.”
Chicopee: Hearing Officer’s Response
• “The law does not require that Chicopee maximize
Student’s educational development or even provide what
is best for Student.”
• “The relevant legal standards place no obligation upon
Chicopee to provide what is ‘best’ for Student; rather,
Chicopee must provide what is reasonably calculated to
allow her to make meaningful educational progress
commensurate with her educational potential.”
• The Chevrolet; not the Cadillac.
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Chicopee: The Importance of Experts
• “By conference call during the week prior to the evidentiary
hearing, I advised Mother and Grandmother of the importance
of having [the expert] testify, and [Parent’s expert] was
subsequently added to Parents’ witness list, with her testimony
to be taken by telephone. But, at the evidentiary hearing,
Grandmother stated that [Parent’s expert] would not be
testifying. Mother and Student were Parents’ only witnesses.”
• “The written report is given less weight than if her report had
been accompanied by her testimony. Testimony allows for
cross-examination as well as clarifying questions from the
Hearing Officer, whereas the document does not. Also,
testimony would have been helpful to clarify and possibly
support various general conclusions and recommendations.”
Chicopee: The Importance of Experts
• “An additional, important impediment to my giving
significant probative weight to the opinions found within
[parents’ evaluator’s] reports is that there is nothing in the
record (such as testimony or a curriculum vitae) that
would allow me to understand [parents’ expert’s] relevant
professional background. Consequently, I am not able to
determine whether she has sufficient qualifications to
provide expert opinion regarding Student’s special
education needs and how they should be met.”
What Do Parents Seek at Hearing?
• Eligibility
• More services in school
• Separate language based programs in public school
• Placement in a specialized private school with public
funding
• Reimbursement for placement in specialized private
school
• Private schools often involved in hearings with dyslexic
students: Carroll, Landmark, Learning Prep, White Oak,
and Curtis Blake
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What Do School Districts Seek at Hearing?
• Termination of eligibility for special education
• A finding that the rejected IEP provides FAPE
• Out of district placement when parents want to stay in
district (rare for language based disabilities)
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