Cohasset Public Schools v Ethan BSEA # 07-5436

BUREAU OF SPECIAL EDUCATION APPEALS

BSEA# 07-5436

IN RE: COHASSET PUBLIC SCHOOLS v ETHAN¹

DECISION

This decision is issued pursuant to M.G.L. c.71B and 30A, 20 U.S.C.§1401 et seq ., 29 U.S.C. §794, and the corresponding regulations.

A hearing was conducted on August 7, 2007 at the Bureau of Special Education Appeals (BSEA) in Malden, MA. Those present for all or part of the hearing were:

Mother

Father

Mary Dugan Speech Pathologist, Cohasset Middle School

Meg Wiley Special Education Teacher, Cohasset Middle School

Elizabeth McCoy Assistant Principal, Cohasset Middle School

Linda Gill Director of Student Services, Cohasset Public Schools

Mary Ellen Sowyrda Attorney; Cohasset Public Schools

Joan Beron Hearing Officer, BSEA

The official record of the hearing consists of Parents’ Exhibits marked P1-P15 and School Exhibits marked S1-S14 and approximately one day of recorded testimony. The record closed on August 22, 2007 when written closing arguments were received by both Parties.²

ISSUES

1. Does Ethan require an IEP in order to receive a free appropriate public education (FAPE) in the least restrictive environment (LRE)?

2. If so, would Parents’ withdrawal of Ethan from special education be a denial of a FAPE to Ethan?

3. If so, can Cohasset deliver services to Ethan absent Parents’ consent?

4. If so, does Cohasset’s IEP designating weekly counseling, daily inclusion support and pull-out services to address communication and an FBA provide Ethan with a free appropriate public education (FAPE) in the least restrictive environment (LRE) or will accommodations and/or modifications to the IEP necessary to provide Ethan with a FAPE in the LRE?

FINDINGS OF FACT

1. Ethan will be entering 8 th grade in September 2007. He has been receiving special education services since 1 st grade to address difficulty in sustaining attention, processing, and understanding oral and written language and recalling and retaining auditory information; ( see S2, Gill). Ethan also has difficulty utilizing appropriate grammar, vocabulary, spelling and syntax in his writing and some weaknesses in numerical operations. He scored in the needs improvement range in English/Language Arts and at the warning range in Math on the 6 th grade MCAS. Ethan also has difficulty completing his work and manifests deficits in his study skills (P2/S2, S3). Ethan displays impulsive behavior in class, has problems shifting from one task to another and planning and organizing tasks and his materials (P2/S2, see Wiley, Mother, S12). Ethan also has issues with attention, distractibility and impulsivity at home (Mother, see also P2/S2, P1/S3, S4).

2. Ethan’s last accepted IEP is from 6 th grade and runs from March 21, 2006 through March 21, 2007 ( see S3). That IEP calls for Ethan to receive daily support from a special education teacher in his math class and special education support in English four days per week. He would also receive in-class support from the speech/language pathologist (SLP) for two thirty-minute sessions per week. Ethan would also be provided the following: preferential seating near the source of instruction; clear and concise directions and language; teacher modeling, pairing of visual and auditory cues and scaffolding, repetition and rehearsal of concepts to help sustain attention and focus; extended time to formulate and respond to questions and complete assignments; supervision and periodic checks to for accurate understanding of the material and recording homework and tasks in an assignment notebook (S3). Ethan’s IEP also calls for pull-out academic support twice a week which he received during his homeroom period or X block (S3, Mother).

3. On or about November 8, 2006, Mother met with Ethan’s TEAM because she was concerned that he was not completing his school work and wanted to get him back on track (Mother, P12/S7).³ Ethan’s science teacher informed the TEAM that sometimes Ethan looked off into space like he did not understand or hear the directions that were given (P15). Mother felt uncomfortable during the meeting and felt that the teachers were not repeating directions or providing visual support for multi task steps, that they were blaming Ethan for not paying attention and that Ethan did not have any hope of improving with these teachers (Mother, P15). However, the School District agreed to provide Ethan with daily after school help in all subjects and send out weekly regular education progress reports on Fridays. On approximately December 15, 2006 the School District began implementing a behavioral incentive plan that consisted of a daily checklist of appropriate classroom behavior and procedures in all subjects (Mother, P12/S7, P15, S7/P12, McCoy).⁴

4. Ethan’s math teacher approached Mother sometime in November 2006 to ask if she had ever considered putting Ethan on medication. Mother told the math teacher that this was not an option in her family. The math teacher told Mother that she was having a hard time teaching him. Ethan also told Mother that the math teacher had asked him if he was on medication (P15). Mother and the math teacher spoke the next day and Mother gave permission for the math teacher to contact the TEAM. Mother was upset not only because she felt that the remarks were inappropriate but also because the TEAM leader did not contact her immediately after hearing about the incident. Mother contacted the special education director two days later and later that day the math teacher apologized for her statement (P15, see also McCoy).⁵ However Mother believed (and still believes) that the math teacher made the medication suggestion because she did not have enough time to spend with Ethan to appropriately implement his IEP ( see P15, Mother).

5. In approximately January 2007 Parents received a weekly regular education progress report that they felt was incomplete because the social studies teacher had written in her section, “see progress report from week before”. The following week the social studies teacher did not compete her section. When Mother asked the social studies teacher about this the teacher told Mother that she did not complete the report because Ethan had not returned the last report. Parents also did not receive a progress report that was sent home with Ethan informing them that Ethan was doing poorly in English and the school district did not follow up with Parents when the progress report was not returned. Therefore when Parents received Ethan’s second quarter grades (in approximately early March 2007) they were shocked to learn that Ethan’s English grade had dropped from a B- to a D- (Mother, P15).

6. Mother requested a meeting to discuss Ethan’s grades and the lack of communication. Mother was told at the meeting that Mother would be phoned about both discipline and academic issues if it was necessary; however someone informed Mother that they overheard teachers in the teacher’s lounge having a conversation where the teachers said that Mother was told that one teacher told the others that Mother should not get special treatment just because she works there and that the teachers did not have time to call everyone (P14, P15).

7. The TEAM reconvened on March 6, 2007 to review Ethan’s reevaluations conducted in January and February 2007 ( see S4, P8/S5, P9/S6, S8, S9). Testing showed that Ethan continued to have deficits in spatial processing and working memory tasks that required attention, concentration and sequencing and attention and impulsive behavior at home and at school ( see S4, S5, S9, see also Mother, S12). Testing also showed that Ethan continued to display deficits in language processing both orally and in writing (P8/S5, P9/S6). During testing Ethan also acknowledged behavior that impeded his ability to learn (including high amounts of physical complaints, a sense of inadequacy, social stress and inattention). Ethan’s teachers also reported at risk behaviors in class (including hyperactivity, inattention, aggression, conduct, adaptability and impulsivity) (S4, P8/S5). In addition during the time period of testing Ethan had received three written warnings from his math teacher (one on January 29, 2007 for not doing work in class and for chewing gum, another on February 5, for coming in late to math class and not showing up for X block or after school⁶ and a third written warning on February 12, 2007 for chewing gum and refusing to write “I will not chew gum” in class thirty+ times) and a written warning and detention from the speech therapist on February 15, 2007 for not leaving X block on two occasions to receive his reevaluation testing (S14, P15). Testing also showed that Ethan may have organizational and executive functioning deficits evidenced by his teachers observation of Ethan’s difficulty shifting from one task to another, planning, organizing and initiating tasks and materials and poor work habits ( see S4, Wiley).

8. The School District members of the TEAM determined that Ethan continued to be eligible for special education and proposed an IEP that increased his accommodations and services; ( see P6/S9, S10, Gill). In this IEP, Ethan would have received, if accepted, a continuation of his daily support from a special educator in math. He would also receive an additional session in English each week and daily support in history and science; (P2/S2, compare P2/S2, S3, see also Wiley). The proposed IEP also calls for Ethan to continue to receive pull-out academic and organizational support for two sessions per week from the special education teacher, with two additional pullout sessions per week from the speech/language pathologist (SLP) to address oral and written language processing deficits (P2/S2, compare P2/S2, S3, see also Dugan). The proposed IEP also adds pull-out counseling from the guidance counselor (P2/S2, compare P2/S2, S3, McCoy). If the IEP were accepted Ethan would have continued to receive the two sessions of academic services during his homeroom X block. The SLP would provide services two other days during X block (McCoy). However Ethan would miss thirty minutes of one class to receive counseling once per week (McCoy). Finally the school members of the TEAM proposed that Ethan receive a functional behavioral assessment (FBA) from an experienced behaviorist who would examine Ethan’s record and observe him in class to determine when and why Ethan’s behavior problems were occurring so that the TEAM could reconvene and develop a behavioral intervention plan (BIP) to incorporate into an IEP (Gill, Dugan, McCoy, P4).

9. On or about March 16, 2007 the School District implemented a daily individualized learning block in place of Spanish. During this time Ethan was placed with two other students and one teacher to receive homework and skills reinforcement (P12/S7).

10. On March 20, 2007 Parents rejected the IEP because they felt that Ethan’s previous goals had not yet been met and that he had in fact regressed because the School District had not provided Ethan with the appropriate teacher techniques and strategies to meet his goals. Parents also felt that Ethan would not benefit from pull out speech therapy because Ethan was uncomfortable with the speech therapist hovering over him in class. Parents also rejected the school district’s proposal for an FBA because they felt that Ethan’s behavioral⁷ problems were a result of a hostile and negative learning environment in his regular education classes and requested that the school district pay for outside tutoring that Parents were providing for Ethan (P2/S2, P3, Mother, P15).

11. The school district received the rejected IEP. However the speech therapist did not know that the IEP was rejected and went to retrieve Ethan to provide him services (Dugan). However, when Ethan told her that the IEP was rejected no services were delivered (Dugan). Parents however feel that due to poor communication, the school district could not and cannot implement the agreed upon services of Ethan’s IEP (Mother).

12. Ethan continued 7 th grade with his last accepted IEP. However Ethan continued to engage in disruptive behavior that impacted his learning. He often socialized with his peers during his X block homeroom period rather than working on his school assignments and was frequently belligerent and argumentative toward his math and English teachers and the special education teachers in the classroom (S7/P12, Dugan, Wiley). Ethan also required constant reminders to remain in his seat and refrain from disruptive outbursts and socializing during classes; Id. On April 4, 2007 Ethan received an office detention after engaging in disruptive behavior in chorus (S14). On April 12, 2007 Ethan received another office detention for chewing gum and talking back to the math teacher. Ethan received another office detention that day because he did not come after school to make up the work he had missed while he was sent to the office. On May 2, 2007 Ethan received another office detention from the math teacher for repeatedly yelling to others across the room. He received another office detention on May 14, 2007 from the chorus teacher for disrupting the class and making inappropriate comments to other students Three days later Ethan had to go to Saturday school after wandering into a Technology class to socialize with other students. When the Technology teacher told Ethan to leave he asked the teacher why he was being so mean to him and said: “Is it because of my titties?” Ethan finished the school year in June with four office detentions from the math teacher, one for coming to class without a pencil and causing a disruption when told that he would have to serve a detention, another for disrupting another class while walking in the hall, a third for writing text messages in math and responding with a disruptive loud yawn when asked to stop and refusing to go to the office when told to. Ethan finished the year by having to attend Saturday school because he did not come for three detentions (S14). However Ethan was motivated and engaged during his Period 3 individualized learning block consistently working on his class assignments and Ethan’s Term 3 grades did improve as did his behavior in some of his subjects (S7/P12).

13. On May 31, 2007 the school district filed a request for hearing with the Bureau of Special Education Appeals (BSEA) asserting that Ethan was being denied a FAPE, requesting that the assigned Hearing Officer find that the proposed IEP and the extended evaluation were necessary in order for Ethan to receive a FAPE. This finding was requested in order to enable the school district to provide Ethan with the services and the extended evaluation identified in the proposed IEP; ( see Hearing request, P7).⁸

14. On June 26, 2007 Parents sent the special education director written notice that they would like all of Ethan’s special education services to end (S1/P11). Parents liked Ethan’s 7 th grade special education teacher as well as the special educator assigned to Ethan’s TEAM for 8 th grade. However, Ethan does not want to be taken out of X block to receive services. Parents feel that Ethan may struggle in school without services but that he would be better served receiving regular education in conjunction with privately secured services. Parents also feel that they, as Ethan’s parents, have the right to make those decisions for him even if he will endure a little struggling (Mother). Further, Ethan does not require a functional behavioral assessment or a behavioral intervention plan because he is not violent and does not have any documented medical condition that requires a behavioral plan. His behaviors are typical of a twelve year old boy and any behavioral problems will abate if Ethan is not taken out of his X block homeroom period to receive services and does not have a special education teacher next to him in class (Mother).

15. The School District however feels that it has a mandate to provide Ethan with a FAPE (Gill, Dugan). Ethan currently receives the support of a special education teacher and a SLP in the classroom who provides him with strategies to help him focus in the classroom, including cuing, repetition of directions, graphic organizers and prompting. In pull-out sessions Ethan would continue to receive reading and writing strategies and assistance in study skills. He would also have the opportunity to retake tests and the pull-out strategies would help reinforce what he was learning in class. Ethan would also receive under the current IEP, pull-out services from the speech therapist including an opportunity to go over vocabulary, strategies to improve memory and assistance with writing in a small group setting with three to four other students that he is friendly with. In addition, counseling once a week to address self esteem would be provided (Dugan, McCoy). Ethan’s teachers feel that without special education services to address his language processing issues he will have difficulty focusing and understanding directions and the content of his academic classes (Gill, Wiley, Dugan, McCoy). The School District acknowledges that he displays many behaviors that are typical of a twelve year old boy; however Ethan displays behaviors that are more frequent and more severe than other students, including calling out and/or disrupting in class, making sexually inappropriate remarks, getting up and walking around in the middle of a lesson, and therefore requires a FBA in order to receive the intervention and services necessary to address his behavioral issues; Id.

FINDINGS AND CONCLUSIONS

Cohasset has asserted that Ethan, due to his language processing, attention, organizational and behavioral deficits is a child in need of special education and as such requires, in order to receive a FAPE, the IEP that it has proposed, offering consultation, daily special education support and modifications in his regular education academic classes, special education, pull-out support for one period four times a week to address communication, attention and organizational deficits and counseling for one thirty minute period per week to address social/ emotional issues. Cohasset further asserts if Ethan does not receive these services he will have difficulty understanding directions and the content of his regular education classes, and that his behavior will not improve. The School District has also asserted that it be allowed to implement this IEP and that it should be allowed to conduct a functional behavioral assessment to determine when and why Ethan’s behaviors occur and if he requires a behavioral intervention plan as part of his IEP.

Parents do not dispute that Ethan has a communication disability but feel that while he may struggle, he will be able to make it in regular education and that they will provide private supports for him to do so. They further feel that any behavioral issues that Ethan may have are not the result of a disability and that any behavioral issues will abate if he does not receive special education services.

After examination of the documents and testimony in this matter, this Hearing Officer finds that Ethan has disabilities that make him a child in need of special education and that he requires an IEP in order to receive a free appropriate public education (FAPE). This Hearing Officer further finds that the School District’s IEP provides Ethan with a FAPE in the least restrictive environment (LRE). The evidence also shows that Ethan should have a functional behavioral assessment (FBA) and that the TEAM should reconvene in order to determine if further assessments or services are warranted or if a behavioral intervention plan (BIP), including consideration of modification of the discipline code, should be implemented for Ethan. My reasoning follows:

ELIGIBILITY

The evidence shows that Ethan is eligible for special education. According to Massachusetts special education regulations, an eligible student is a person aged three through 21 who has not attained a high school diploma or its equivalent, who has been determined by a Team to have a disability(ies), and as a consequence, is unable to progress effectively in the general education⁹ program without specially designed instruction or is unable to access the general curriculum without a related service. If a student is found to be eligible (s)he has the right to receive special education and any related services that are necessary for the student to benefit from special education or that are necessary for the student to access the general curriculum. In determining eligibility, the school district must thoroughly evaluate and provide a narrative description of the student’s educational and developmental potential ; see 603 CMR 28.02(9), see also MGL c. 71B, s. 1 (provides similar language within its definition of a “school age child with a disability).”

The federal special education statute and regulations use an eligibility standard that is similar to the Massachusetts standard. As with the Massachusetts standard, the federal special education regulations use a two-part test requiring (1) that the student have one of the enumerated¹⁰ disabilities (the federal and state definitions of disability are similar) and (2) that by reason of the disability, the child needs special education and related services; see 20 USC 1401 (3); 34 C.F.R. 300.7.

Evaluations, and testimony from Ethan’s teachers show that Ethan does have a communication disability and that this disability affects his ability to sustain attention and to process and learn new information and recall and retain auditory information. This communication disability affects Ethan’s ability to effectively express his ideas orally and affects his ability to use appropriate grammar, syntax, vocabulary and spelling in his writing. The evidence also suggests that Ethan may have a nonverbal learning disability that the Parties should explore to see if further¹¹ modifications or accommodations and/or services are required. In school Ethan displays impulsive behavior in his classes, has made inappropriate comments,¹² has problems shifting from one task to another and difficulty planning and organizing tasks and his materials and difficulty completing his work, as well as deficits in his study skills; ( see P2/P3). As such Ethan, because of his disabilities, is unable to progress effectively in regular education and requires a special education program in order to receive a free appropriate public education (FAPE).

APPROPRIATENESS OF THE IEP

The evidence also shows that the proposed IEP will, with some modifications, provide Ethan with a FAPE in the LRE. The IEP provides for accommodations to help Ethan focus and recall, and aid in his comprehension and address organizational and writing deficits. It also offers appropriate special education support in the classroom to assist him in understanding the material and appropriate pull-out support to address both his communication and social/ emotional issues and consultation so that the program will be coordinated. However, the IEP should be amended to reflect the pull out organizational support that Ethan is receiving.

Parents have indicated that they want to have Ethan pulled from special education because he is not benefiting from the special education services, because he does not want to leave his homeroom period, and that other services have not been implemented. However, the Hearing Officer cannot determine with the evidence presented whether Ethan’s academic and behavioral issues are the result of accommodations that were not implemented, or whether the discipline code should be individualized through a behavior plan to accommodate a disability. A functional behavioral assessment¹³ is needed to determine when and why these behaviors occur and if the IEP needs to be modified to include a BIP¹⁴ if needed, but also whether further services and/or accommodations to the IEP should be added to address both verbal and nonverbal communication deficits, organization and behavior.¹⁵

IMPLEMENTATION ISSUES

Cohasset has, in its hearing request, asked that Parents’ rejection of the proposed IEP be deemed to be a denial of a FAPE to Ethan and that it be allowed to implement Ethan’s proposed IEP if found to be appropriate. Parents have indicated that they will provide Ethan with services. Ethan will receive some benefit if he privately receives the pull-out academic services that he used to receive from Ms. Wiley; however, this private provision of services added to a regular education program even if Ethan’s 8 th grade teachers provide regular “good teaching” accommodations to all of their students, will not provide Ethan the consultation he requires to have a coordinated program or the speech/language services to address memory and recall or the counseling and other services that Ethan may need to address social/emotional issues; and, as such, will not provide Ethan with an individualized educational program that will allow him to make meaningful educational progress as required by the IDEA to achieve a FAPE; see e.g. Roland M. v Concord School Committee , 910 F. 2d 983 (1 st Cir. 1990).

However, in this situation Cohasset seeks to implement the IEP that it proposed. On June 28, 2007, the School District received written notice that Parents had withdrawn Ethan from special education services; (S1). Generally, a school district may only provide services with the consent of one or both Parents.¹⁶ School districts are required, pursuant to this Commonwealth’s law and the IDEA, to obtain written parental consent from a Parent (or guardian) before conducting an initial evaluation or making an initial placement of a student in a special education program; ( see M.G.L. s. 71B s. 3, 603 C.M.R. 28.07 (1)(a), 8, 20 USC 1414 (a) (1) (D) (i) (II). 603 CMR 28.00. Parents may also revoke their consent to services or to evaluations at any time; 603 C.M.R. 28.07 (1)(a) 2.

If a school district feels that Parents actions have denied the student a FAPE, it is required, as it did here, to request a hearing from the BSEA to resolve the dispute; 603 C.M.R. 28.07 (1) (b). A Hearing Officer shall, pursuant to Chapter 71B s. 3, order such educational placement and services as (s)he deems appropriate and consistent with the chapter to assure that the child receives a free and appropriate public education in the least restrictive environment; however if parents (or guardians or educational surrogate parents) reject the determination and the program desired is a regular education program, the local school committee shall provide the child with the educational program chosen by the parent except where such placement would seriously endanger the health or safety of the child, substantially disrupt the program for other students or if the child is currently in a special education program deny the child a free appropriate public education.¹⁷ In such circumstances, the local school committee shall proceed to the superior court with jurisdiction over the residence of the child to make a showing that the child should be placed in an appropriate educational program and the Court, if such a showing is found, shall be authorized to place the child in an appropriate educational program. Although these procedures allow a BSEA Hearing Officer to determine the appropriateness of the proposed IEP, the Parties have offered no authority for a BSEA Hearing Officer to override Parents’ lack of consent or to otherwise issue an order that Student be returned to his special education placement.

Similarly, if Parents choose to refuse all special education services, Ethan will be considered a regular education student. This means that if Ethan does not progress effectively in regular education because of his disabilities the School district would not be obligated to provide compensatory education because there would be no IEP to be implemented or to be considered as inappropriate. Ethan would also be subject to disciplinary procedures as a regular education student. In addition, as these matters would not be determined under special education law, these issues would not be within the jurisdiction of the BSEA and could not be addressed by a BSEA Hearing Officer.

However, Parents have the right to make decisions regarding Ethan, including educational decisions such as withdrawing Ethan from special education.¹⁸ If Parents chose to have Ethan receive special educational services, the TEAM will reconvene to develop a functional behavioral assessment (FBA), amend the IEP to reflect the organizational services that Ethan is currently receiving, reconvene after the FBA is completed and develop a behavioral intervention plan (BIP) if appropriate.

ORDER

Cohasset’s IEP with modifications, and its extended evaluation provides Ethan with a free appropriate public education in the least restrictive environment. Parents’ proposal for regular education with private services will provide Ethan with some benefit but does not constitute a FAPE.

By the Hearing Officer,

Joan D. Beron

Date: August 23, 2007

1

Ethan is a pseudonym used for confidentiality and classification purposes in publicly available documents.

2

This matter was originally continued from August 7, 2007 until August 22, 2007 so that two of Ethan’s teachers who were unavailable could testify for Parents. On August 8, 2007 Parents withdrew their request to have these teachers testify but requested an opportunity to submit a written closing argument. The matter was continued until August 22, 2007 so that both Parties could submit written closing arguments.

3

Ethan has also served detention on October 27, 2006 for inappropriate behavior in his social studies class; ( see S14).

4

The School District indicated that Mother cancelled the behavioral incentive plan on February 13, 2007 (S7/P12). The School District did not produce the behavioral incentive plan nor did Mother testify about this issue.

5

The administration agreed that the remark was inappropriate and addressed this with the teacher (McCoy). It did not occur again.

6

Ethan had an excused tardy on February 5, 2007 and was given a pass (P15, Mother, McCoy). The disciplinary incident remains in Ethan’s record. It is unclear whether the incident was for skipping class or for not showing up for X block and after school or for all these incidents; ( see S14).

7

The day before Parents returned the IEP Ethan received a written warning from the adjustment counselor because he and another student were hiding under a desk and listening to a confidential conversation before running out of the room five minutes later (S14). Ethan had to serve a Saturday detention (S14).

8

The matter was assigned to another Hearing Officer and set for hearing on July 5, 2007. Both Parties requested a postponement. The Parties participated in a conference call with the Hearing Officer on July 26, 2007 and a hearing date was set for August 7, 2007. This matter was reassigned to this Hearing Officer on August 6, 2007 due to that Hearing Officer’s unavailability.

9

Massachusetts defines “progress effectively in regular education” as documented growth in the acquisition of knowledge and skills, including social/emotional development, within the general education program, with or without accommodations, according to chronological age and developmental expectations, the individual educational potential of the student, and the learning standards set forth in the Massachusetts Curriculum Frameworks and the curriculum of the district. The general education program includes preschool and early childhood programs offered by the district, academic and non-academic offerings of the district, and vocational programs and activities; 603 C.M.R. 28.02(17).

10

Disability includes the following impairments; autism, developmental delay, intellectual impairment, sensory impairment, neurological impairment, emotional impairment, physical impairment, learning impairment and specific learning disability; 603 CMR 28.02 (7).

11

The IEPs do have some goals and objectives to address organization such as the use of checklists and use of a variety of organizational tools (i.e. color coded folders).

12

The speech therapist indicated that Ethan does not have any deficits in pragmatics; however no pragmatics testing has been done; ( see S5). This should be further explored.

13

The School District has asserted that it does not need consent to conduct an FBA because it is only reviewing records and observing the student ,but in the alternative seeks an order to override consent. The School District has the right to review a student’s records and make educational determinations. To the extent that the School District is evaluating a student the facts warrant that consent be overridden and as such the School District can conduct an FBA even if it does not have Parents’ consent.

14

Parents assert that a BIP is not needed because Ethan is not violent and does not have a documented medical condition that warrants a behavioral plan. The Hearing Officer agrees that Ethan is not violent nor does he have a documented medical condition such as emotional disturbance; however a BIP is not reserved for violent students. Many children, including those without special needs, benefit from a behavioral plan and development of a BIP.

15

For example, Ethan has been disciplined for not bringing in a pencil, for disruptions and outbursts, or making inappropriate sexual comments and for chewing gum. The behaviorist and the TEAM should look at whether Ethan should have gum or some other sensory object to help him focus, whether Ethan should have additional organizational supports (i.e. checklists for materials) or if behavior occurred because agreed upon supports were not implemented and whether pragmatics testing should be conducted to determine whether the outbursts and disruptions are the result of a deficit in pragmatics that would require services. The TEAM should also look at scheduling issues to determine whether Ethan may be better served by receiving services during another nonacademic period or other period, or incentives to make services more tolerable during X block as well as ways that Ethan could receive special education support in his regular education classes If the TEAM determined that changes were needed the IEP would be amended and Ethan would receive services to accommodate and address his behavior or help prevent negative behavior from occurring.

16

20 USC 1414(a)(1)(D)(i)(II) and 1414(a)(1)(D)(ii)(II) (requiring consent prior to providing special education services); MGL s. 71B, s. 3 (requiring consent prior to placement in a special education program); 603 CMR 28.07 (describing parents’ rights regarding consent). Cf. 20 USC 1400(d)(1)(A) (principal purpose of IDEA is “to ensure that all children with disabilities have available to them a free appropriate public education . . .”) (emphasis supplied). But see 20 USC 1415(k) (involuntary placement in alternative education setting allowed under certain circumstances); 34 CFR 300.300(b) (proposed federal regulations interpreting consent rights under IDEA 2004 as applying only to initial placement).

17

Although this Hearing Officer has found a denial of FAPE, Ethan’s continuation in a regular program would not seriously endanger the health and welfare of the child and the School District, although it has shown that there may be some disruption of the program for other students, did not meet its burden of showing substantial disruption for other students. A question exists as to whether Ethan is currently in a special education program because although Parents sent Cohasset notice that they were withdrawing him from special education on June 26, 2007, on May 31, 2007, when the School District’s hearing request was filed, Ethan was currently in a special education program.

18

Parents or the School District may however at any time seek to have a student evaluated for special education. This however would constitute an initial evaluation and placement.