Hamilton Wenham Regional School District v. Student – BSEA #05-2725

COMMONWEALTH OF MASSACHUSETTS

SPECIAL EDUCATION APPEALS

Hamilton-Wenham Regional School District v. Student – BSEA #05-2725

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 regulations promulgated under said statutes.

A hearing was held on June 3, 2005 at the Bureau of Special Education Appeals, 350 Main Street, Malden, Massachusetts, before Catherine M. Putney-Yaceshyn, Hearing Officer.

PROCEDURAL HISTORY

Hamilton-Wenham Regional School District, (hereinafter, Hamilton-Wenham) requested a hearing on December 13, 2004 and a hearing was scheduled for January 4, 2005. Hamilton-Wenham requested a postponement on December 20, 2004 and by agreement of the parties, a pre-hearing conference was scheduled to proceed on March 1, 2005. Due to inclement weather, school was cancelled in the district on March 1 and the pre-hearing conference was rescheduled on March 22, 2005. There were telephone conference calls on March 22, April 26, and May 13, 2005. The hearing was held on June 3, 2005 at the Bureau of Special Education Appeals. Although Mother was present at the hearing, she became overwhelmed when it was her turn to testify and opted not to provide testimony. She was given an opportunity to take a break prior to testifying, but decided she would not testify. The hearing officer encouraged Mother to submit a closing brief to the BSEA or have somebody submit a brief on her behalf. The Parties were given two weeks to submit their closing briefs and they were due on June 17, 2005. Hamilton-Wenham’s attorney submitted a brief on the district’s behalf and Garrett Colson, an advocate authorized by Mother to act on her behalf, submitted a brief on Mother’s behalf on June 17, 2005. The record closed at that time.

Those present for all or part of the Hearing were:

Student’s mother

Deborah Frontierro Student Services Director, Hamilton-Wenham Regional School District

Catherine Lyons Attorney, Hamilton-Wenham Regional School District

Catherine M. Putney-Yaceshyn Hearing Officer

The official record of this hearing consists of Hamilton-Wenham’s exhibits marked S-1 through S-36 and Parent exhibits marked P-1 – P-6 (pgs. 1-53 and pgs. 88-114), P-13-P-21, P-22 (pgs. 5-15, and 17-31), P-23-P-24, P-25 (pgs. 17-20 and pgs. 22-30) and P-26 and approximately 4 hours of recorded oral testimony.

ISSUES

Whether Hamilton-Wenham Regional School District acted appropriately in denying Parent’s request for an independent evaluation.

Whether Hamilton-Wenham’s determination that Student is not eligible for an IEP was correct.

SUMMARY OF THE EVIDENCE

1. The student (hereinafter, “Student”) is a 13-year-old seventh grade student residing in Hamilton, Massachusetts, within the Hamilton-Wenham Regional School District (hereinafter, Hamilton-Wenham). (S-2) Student’s full scale IQ, as assessed by Karen Baker, psychologist, in October and November 2004, is 123. (S-6, P-)

2. Deborah Frontierro, the Director of Student Services for Hamilton-Wenham, testified that she has provided a great deal of oversight regarding Student because of involvement that she has had with Student’s family. She testified that Student has had a history of excessive absences and that her test scores show academic strength. She stated that all of Student’s test scores have been in the average to high average range. She stated Student is very articulate and that math is a weakness for her, although she scores in the average range in math. (Frontierro)

3. Ms. Frontierro testified that Student attended a charter school in Chelmsford during the 2003-2004 school year. In the summer of 2004, Student’s father came to see her and told her Student wanted to return to Hamilton-Wenham. He asked her if she could prevent Student’s Mother from having Student evaluated by the school district again. Ms. Frontierro informed him that she had a responsibility to consider any request by a parent for an evaluation and would respond to any request she received.

4. On or about September 24, 2004, Ms. Frontierro received a consent form that had been signed by Student’s mother, consenting to a speech language, reading, written language, and math evaluation. Mother also added to the consent form indicating she wanted Student to have a neuropsychological evaluation, and assessments of spelling, and listening comprehension and expression. (P-19, S-1) Ms. Frontierro was not sure where Mother had gotten the form, because she had not sent it to her. However, Ms. Frontierro treated the correspondence as a request for an evaluation. Based upon what Mother had written in the consent form, it appeared that her concerns related to student’s expressive and receptive language skills. Ms. Frontierro also thought an academic assessment would be helpful since Student had been out of the district for an academic year. On September 27, 2004, Ms. Frontierro sent Mother a “Narrative Proposal of the District’s Proposal” regarding testing for Student. (S-4) Ms. Frontierro sent a consent form to Mother as well. Mother returned the signed consent form and checked off additional items that the district had not proposed. She also listed a number of evaluations on the back of the consent form. (S-5) Mother completed a Student History form that Ms. Frontierro had sent her and indicated she was concerned that her daughter was failing school. (S-3) Ms. Frontierro testified that Student was not failing school at that time or at any other time. She explained that Student had been tardy a number of times by early September, but attendance had not yet become a problem. (Frontierro)

5. The Team convened on November 30, 2004 to review the results of the evaluations and make a determination regarding Student’s eligibility for special education. (Frontierro, S-14) They reviewed psychologist, Karen Baker’s, report pertaining to her October 29 and November 2, and 4, 2004 testing of Student¹ . (P-5, S-6) Ms. Baker recited the history of Student’s prior testing from 1999 to the present. She noted that Student had been assessed by Winthrop School (1999), Children’s Hospital (1999), Massachusetts General Hospital (2000), Lesley Learning Lab, (2001), Floating Hospital (2002), and Boston University School of Medicine (as part of a research study, 2003). She noted that Student’s most recent prior testing found her to function within the overall average range of intelligence (107), with Verbal at 113 and Nonverbal Reasoning at 95. No learning disabilities were found. Testing done the prior year at Floating Hospital found Student’s cognitive and academic testing were all within normal limits. It also noted Student appeared to be under “situational stress resulting in symptoms of depression and anxiety consistent with a diagnosis of Adjustment Disorder (chronic stressor).” (P-5, S-6)

Ms. Baker reported Student’s WISC-IV results as follows: Verbal Comprehension: 116, Perceptual Reasoning: 119, Working Memory: 135, Processing Speed: 103, Full Scale: 123. She reported that there was no significant intra-factor scatter and concluded “that there are no significant cognitive/psychological processing handicapping conditions present within her basic intellect.” On the BASC, teacher team form, Ms. Baker reported that no critical items were scored. She noted Student scored in the clinically significant range for social skills and leadership. In the BASC Self-Report form Student’s scores were all within the average/normal range. The Beery VMI yielded a scaled score of 113, an age-equivalent score of 15-7 and a percentile ranking of 81. She was deemed to have an “above average ability to hear (discriminate) what is being said to her” on the Wepman. On the depression scale Student scored a 54 with no critical items endorsed. Scores of 77 or above suggest significant depression. (P-5, S-6)

Ms. Baker concluded that there was no reason, based upon her testing, to believe Student is “experiencing serious pathology that would affect her ability to obtain academic skills at expectancy.” She concluded Student is not learning disabled and that special education is not recommended for her. (P-5, S-6)

The Team also considered the report written by Nancy Baldwin Koch, special education teacher, and Kim Jolie, CCC/SLP. The report was written on November 17, 2004, based upon Student’s performance on the WIAT-II, the Comprehensive Assessment of Spoken Language (CASL), and the Test of Language Competence-Expanded Edition (TLC-E). The report noted that Student benefited from taking her time and organizing her answers. In Reading, Student’s scores indicated that her overall reading skills fall in the high average range. Her strongest performance in the area of reading was on the reading comprehension subtest. In math, the evaluators found Student was performing solidly within the average range with her math reasoning skills being stronger than her calculation skills. Additionally, her language skills all fell within the average range with no significant relative strengths or weaknesses. However, Student required a great deal of time to organize her thoughts. In summary, Student was found to perform “solidly in the average range in all areas tested by this instrument.” Written language was noted to be a relative weakness, but Student showed a “clear understanding of paragraph structure and is able to write a variety of sentence types.” Based upon Student’s performance on the oral expression subtest, the evaluators suggested Student would benefit from wait time when asked to respond orally. They also suggested that she brainstorm ideas and vocabulary prior to writing on a given topic. Finally, they recommended close monitoring to ensure that homework is understood prior to going home. (P-5, S-10)

Student’s teachers reported Student was a quiet student who did well. The Team considered that Student’s lowest test scores were in the solidly average range with many scores in the above average range despite her many absences. They noted that her scores were consistent with past test results. (Frontierro)

6. The Team reconvened on December 6, 2004, to consider an independent audiological evaluation from Children’s Hospital completed on November 1, 2004, by Jennifer D. Najarian, Au.D., CCC-A, audiologist. (P-6, pg. 98-101, S-7) Ms. Frontierro testified that the Team had some concerns regarding the accuracy of the report, because the report uses a different child’s name when discussing Student’s performance. The report reads, “[Wrong name]’s performance today suggests weaknesses within the auditory system and reveals an auditory processing disorder at this time. Whether the noted difficulties are due to auditory processing issues, attention concerns, language based learning issues or a combination of these factors, [Student] is at risk for inaccurately perceiving auditory information.” (P-6, pg. 98-101, S-7) Dr. Najarian makes a number of recommendations for Student. She recommended providing Student with preferential seating and providing instructions in a concise and structured manner. She recommended encouraging Student to self-advocate and request repetition when needed. She recommended providing Student with frequent breaks and minimizing fatigue. She recommended combining auditory and visual information. She recommended the use of an FM amplification system, The Edulink. Finally, she recommended providing Student additional time to complete work and note taking assistance. (P-6, pg. 98-101, S-7)

Ms. Frontierro testified that the Team found Student was not eligible for special education based upon her solid cognitive profile, her teachers’ reports, her classroom performance, and there being no identified learning disabilities in any of her evaluations. The Team found that even with a diagnosis of auditory processing weakness, Student did not qualify for an IEP. The Team agreed to rent an FM amplification system and have Student use it on a trial basis to determine whether she was comfortable using it. The Team was not completely comfortable with Student using the FM system because she was already doing so well in her classes. However, because it was recommended in the Children’s Hospital report and Mother requested that it be used, they agreed to use it on a trial basis. (Frontierro, S-15)

7. On December 8, 2004, Mother requested that Student be evaluated by a behavior specialist in all of her classes including gym, art, and technology. Mother again submitted a consent form that had been written for a different Student and changed the name to Student’s. (P-19, S-13) Ms. Frontierro wrote a letter to Mother, dated December 8, 2004, in which she agreed to have Beth LaCroix, the behavior specialist observe Student in her classes. She stated that there would not be a formal functional behavior assessment, because Student did not exhibit any behaviors at school that would necessitate such an evaluation. (S-15) Ms. Frontierro outlined the history of Student’s prior evaluations in the December 8, 2004 letter as follows. The district initially evaluated Student at Mother’s request in October 1999, Student’s second grade, and she was found ineligible for special education. Mother rejected the finding. From April through September 2000 Student was evaluated by Massachusetts General Hospital, Children’s Hospital and Franciscan Children’s Hospital, at district expense. Student was again found ineligible and Mother again rejected the finding. Student’s progress was monitored during third grade and she continued to well, although frequent absences were a concern. Student was again tested in the fourth grade by Floating Hospital and Lesley Learning Lab. No specific disabilities were indicated, but there were concerns about depression and anxiety. Student was diagnosed with a disability in the area of auditory processing. Hamilton-Wenham proposed a 504-accommodation plan to make classroom accommodations and Mother rejected the plan. In September 2002, Student’s fifth grade, the parties reached a mediated agreement which provided Student with a 504 plan. Frequent tardiness and absences continued to be a concern. Student left the district to attend a charter school in 2003. While at the charter school Mother requested that Student be evaluated and the charter school denied the request. During sixth grade Student took part in a research study at Boston University in which she completed a full round of testing. Student was again tested during the current school year as described above. (S-15, Frontierro)

8. Ms. Frontierro testified that she filed a request for hearing in this matter because Mother continued to request additional assessments of Student. Student’s absences were becoming excessive and she was concerned that the continuous assessments of Student were taking a toll on her. On December 9, 2004, Ms. Frontierro wrote a letter to parents. She stated that Student is doing well in her classes. She mentioned that Student has had extensive testing over many years and stated that she hoped Student would receive positive messages about herself and her abilities at home and at school. (Frontierro)

9. Ms. Frontierro testified that Father came to her office on December 14, 2004 and asked if he could stop the continued assessments of Student. He asked her to write a statement saying that he thought there had been enough testing of Student, and he signed the statement. (S-17, Frontierro)

10. Behavioral Specialist, Beth LaCroix, observed Student in all of her academic classes, transition times, gym class and a school concert on December 22 and 23, 2004. Additionally, she spoke to Dr. Syed, Student’s outside therapist. (P-5, pg. 54) She reported “no observable negative behaviors were evident within the school setting.” She noted that the problematic behavior Student had shown was excessive absences. She wrote a behavioral intervention plan to assist Student. The plan included Student frequently checking in with her, Student continuing to see Dr. Syed, one staff person having daily contact with home via a communication log, and ongoing contact between Ms. LaCroix and Dr. Syed. (P-5, pg. 54)

11. On December 22, 2004, Ms. Frontierro received a speech language evaluation report from Kristine Strand, Ed.D., CCC-SLP, from Boston University. The evaluation had been done on September 29, 2004, unbeknownst to the district. (S-18, Frontierro) Ms. Frontierro scheduled a Team meeting to review the report on January 5, 2005. (S-19)

12. The Team met on January 7, 2005, due to a conflict in Mother’s schedule and a school snow day. The report showed Student scoring in the average to above average range in most sub-tests, and below average in “word finding behaviors” on the Test of Word Finding. (S-18) The Team determined that Student was not eligible for special education because the additional evaluation did not provide any evidence of a disability. (Frontierro)

13. Ms. Frontierro wrote a letter to Parents, dated January 7, 2005. In the letter she stated that she felt strongly that it is not in Student’s best interest to do further evaluations of her. She wrote, “It is essential, for [Student]’s well-being, that she receives positive messages from the adults in her life about her many strengths, and that she is praised for her successes, both in school and at home. When students are repeatedly tested, it is possible that, however well-intentioned the testing may be, they may inadvertently receive the message that there is something wrong with them.” She went on to say that all of the in-district and independent evaluations of Student have shown that Student has intact skills. (P-20, S-20)

14. On January 12, 2005, Ms. Frontierro sent a letter to Parents because Student’s attendance was becoming a problem. (P-20, S-21) Mother had been scheduled to meet with the school behaviorist, Beth LaCroix, that morning to discuss a proposed behavioral intervention plan to address Student’s attendance. Student had been absent for 22 of 81 school days and had been tardy on 17 days and dismissed three times. Ms. Frontierro requested that Mother provide her with medical notes from Student’s doctors regarding her absences and that she allow school staff to contact her doctors to coordinate and attempt to help Student. (S-21) Mother did not attend the meeting with Ms. LaCroix, and Ms. LaCroix called her to express her concern. Mother told Ms. LaCroix Student had demonstrated some extreme behaviors at home. She reported a fire setting incident at Student’s friend’s house and that Student and a friend had been picked up on the street at night. She also reported that Student had emptied her room of everything but a mattress and locked her door and refused to let anybody in. Ms. LaCroix requested a release to speak to Student’s psychiatrist, Dr. Syed, and Mother provided her with one. Ms. LaCroix called Dr. Syed who was not aware of any of the aforementioned behaviors. The principal filed a 51A based on the extreme behaviors described by Mother and the psychiatrist’s unawareness of them. (Frontierro)

15. On January 14, 2005, the special education chairperson, Nancy Baldwin Koch, sent a letter to Parents inviting them to an emergency Team meeting to discuss Student’s current issue and her school placement on January 18, 2005. (S-22)

16. Student was admitted to Metro West Hospital on January 18, 2005 and remained there until January 26, 2005. (P-1, Frontierro) Student’s presenting problem was noted as “evaluation and treatment of school related anxiety and school avoidance.” Student’s discharge summary noted that Student had been “immobilized by excessive worries, concerns and anxiety. She often fears that other people, including boys at school, are watching her. She has some anxieties about her body, which she had confided to her mom. She is unable to cope with the idea of being in class with other people.” (P-1) Upon admission to Metro West Student was guarded and shy. Her mood was globally anxious. Her “judgment and insight seemed to be impaired by her very severe anxiety disorder.” On the unit she was reserved with peers and staff. She presented no evidence of unusual thought patterns or bizarre behavior. She appeared to be painfully self-conscious and did not want to take her meals with peers. Student was started on Klonopin and responded positively. She reported that she felt more comfortable speaking in class in front of peers. She became more socially engaged with her peers. (P-1)

A caregivers’ meeting was held with school personnel and a decision was made to find Student a 45-day educational diagnostic day placement, to more fully assess her needs. Additionally, a request was made for home tutoring until an appropriate therapeutic, diagnostic, educational placement could be found. Student was discharged in “improved, but unstable condition.” Her DSM-IV discharge diagnosis was as follows: Axis I: School avoidance, rule out general anxiety disorder, Axis II: No diagnosis, Axis III: No diagnosis, Axis IV: Psychosocial stressors: moderate peer issues at school, Axis V: GAF high in last year 60; low 40; present 55. Student’s recommended medications upon discharge were Klonopin and Zoloft. She was to follow up with Dr. Syed and have a family support team from Beverly. Home based tutoring was recommended. (P-1)

17. Ms. Frontierro testified that she was concerned that the Team had so much academic and cognitive diagnostic information about Student but needed a comprehensive assessment of her emotional status. She recommended a 45-day diagnostic placement and the Metro West Hospital staff agreed. She sent referral packets out as soon as she received Mother’s consent in response to her January 21, 2005 letter to Parents. (S-23) Ms. Frontierro testified that she asked the potential placements to expedite the referral process because Student was to be discharged later in the week.

18. Ms. Frontierro sent a letter to Parents on February 4, 2005 regarding the status of the referral process. She informed them that Student had been accepted at the Merrimack Education Center (hereinafter, “MEC”), but their start date was not until March 8. The Star program in Beverly found Student was appropriate and had an immediate opening. Cornerstones in Ipswich also found Student to be appropriate for their program and had an immediate opening. Ms. Frontierro requested that Parents visit the three programs and let her know which they preferred and stated that home tutoring would continue in the meantime. (S-24)

19. On February 9, 2005, Ms. Frontierro sent Parents an invitation to a February 28, 2005 Team meeting to discuss Student’s 45 day diagnostic placement. (S-26) The Team wrote an extended evaluation report indicating that they required additional information regarding Student’s emotional status and ability to attend school. The report indicated that the Team would reconvene upon completion of the diagnostic placement. Mother partially rejected the extended evaluation because she wanted Student to also receive academic evaluations, a psychiatric evaluation or neuropsychological evaluation and a functional behavioral assessment. (S-27, Frontierro)

20. Ms. Frontierro testified that Student was scheduled to begin attending MEC on March 8, 2005. Hamilton-Wenham had arranged for transportation and at Mother’s request Student was to ride alone in a van with a female driver. On the first day, the van arrived at Student’s home and Student did not go to MEC. The following day Father came to see Ms. Frontierro and told her Student did not want to go MEC and wanted to return to Hamilton-Wenham. Ms. Frontierro wanted to meet the next morning to do an intake and plan for Student’s transition back to school since she had been out of school for so long. On March 9, 2005, Student, Father, Ms. LaCroix, Ms. Koch, the assistant principal, the principal and Ms. Frontierro met to discuss Student’s re-entry to school. (S-28, S-29) The meeting participants determined that because Student said she felt anxious entering a large group, she would be dropped off at school and would check in with either Ms. LaCroix or Linda Shannon at the start of each day. These two staff members would check in with Student throughout the day. Student would be responsible for her academics and would stay after school for help as needed. Student would have a “permanent pass” that would allow her to leave class if she felt anxious. She would be allowed to go to the office and the office would call one of the aforementioned staff persons. Student would report any issues with peers or teachers to her assigned staff persons. Student was to attend school on a regular basis. She would receive alternate grades (pass/fail) for the third term and would be expected to complete her regular work with regular grading for the fourth term. Student was not to be dismissed from school by her mother without good cause. The Team agreed that if Mother sought additional assessments of Student or sought to change her placement the Team would convene at a time when Father was also available. Father agreed that Student did not require further testing. The Team discussed Student’s taking medication for anxiety on an as needed basis and agreed that if Student’s ability to attend school or make effective progress was impacted by anxiety, the Team would reconsider eligibility. (S-29)

Ms. Frontierro testified that Student successfully re-entered the middle school. She stated that there were a couple of glitches in using the pass initially, but then Student settled in and did pretty well. After a few weeks Student began having excessive absences again. (Frontierro)

21. Ms. Frontierro testified that on March 18, 2005 she received a telephone call from MEC informing her that Student had arrived there with Mother and wanted to be enrolled. MEC informed her that they were still willing to accept Student, but she could not start immediately. Ms. Frontierro agreed to allow Student to attend MEC, but not because she had not been successful at the middle school. Ms. Frontierro believed Student was caught in a tug-of-war between her parents which was having a negative impact on her. Ms. Frontierro wanted to “stop the chaos” and give Student a 45-day respite for things to settle down. (S-30, Frontierro)

22. Student began attending MEC at the end of March 2005. After having what MEC staff reported was a good first day, Student was absent for the next three days. Ms. Frontierro sent Parents a letter on March 30, 2005, reminding them of the district’s policy regarding excused absences and the importance of helping Student establish a regular routine of attending school. (S-31) Student’s attendance improved after that. (Frontierro)

23. Parents, Student, Ms. Frontierro, and Cheryl Crumb, a licensed mental health counselor at MEC, met on May 6, 2005 to review Student’s progress at MEC. Parents had recently separated and Student was living with Father in Newburyport. Ms. Crumb drafted an Assessment Summary based upon Student’s attendance from March 24, 2005 through May 7, 2005.² The Pre-Referral Checklist was completed by staff at Miles River Middle School and noted Student was very bright and math was her weakest area. She was noted to have many absences and tardies and had little interaction with teachers and withdrew from attempts by others to be friendly. She appeared to be unhappy and preoccupied with problems unrelated to school. Student’s score on the Beck Depression Inventory was in the minimal range, indicating that Student did not describe many symptoms of depression at the time the tool was administered. However, Student noted that she cried more than she used to, was indecisive and had less energy. She also reported difficulty with sleeping. She was reportedly not taking any medication during her placement. She presented as shy and timid during the assessment period. Toward the end of the assessment period, Student experienced a great deal of anxiety relating to her parents’ separation and moving in with Father. She appeared “somewhat fragile, withdrawn, and preoccupied” during this time. On the Behavior Rating Scale Student noted that her family does not do many things together and she sometimes breaks house rules. She reported feeling less anxious, more relaxed and excited about having recently moved to Newburyport. She admitted to not being interested in school work and reported she often thought about getting sick so that she did not have to go to school and often daydreamed in class. During her assessment period she responded well to the low student/teacher ratio as evidenced by her attendance record. After the three days she missed at the beginning of her placement, Student missed only one additional day. Her work output was within the high average range, except in math. Focusing was an obvious issue for her. She seemed to daydream often and was preoccupied with her thoughts which sometimes resulted in her inability to comprehend what the teacher was saying. Although Student scored in the average range with regard to her peers she reported that she does not tell anyone how she feels and that she views other kids as not listening to what she has to say. She reported that she felt extremely overwhelmed by her peers at her previous school setting and the way they treated her often made her not want to attend school. Student seemed very excited over the friendships she has made in Newburyport. (P-4, S-32)

During the assessment period Student was initially slow to engage, but eventually interacted with her peers and appeared comfortable. Toward the end of the assessment period, when she was going through the transition of moving, she became more withdrawn. Ms. Crumb noted that, “Given her current chaotic situation, it is possible that Student utilizes a form of denial and detachment as a means of coping.” On the MACI, Student showed elevated scores on the “Family Discord” and “Anxious Feelings” scales. She views family discord as a major concern and that has a high probability of significantly affecting her feelings and behavior on a regular basis. She views her family as “tense and filled with conflict.” Her score on the “Anxious Feelings” scale indicates that she experiences a significant sense of foreboding and apprehensiveness about all sorts of matters that make her nervous. Student acknowledged that since entering the assessment program she experienced a decrease in anxious feelings. (P-4, S-32)

Testing and observation revealed a student who is experiencing a “significant amount of turmoil and transition in her life.” She appears to utilize denial and detachment in order to cope and is unable to verbally express the impact of what she is experiencing. “Based upon her presentation, it is obvious that her current situation has taken its toll.” Student was able to talk about her feelings of anxiety once she became comfortable with the staff. She responded well to the program. Ms. Crumb concluded that because of the “multiple changes occurring in Student’s life and the timing of the school year, it would appear to be a tremendous challenge for Student to negotiate the demands of a mainstream school setting at this time.” She concluded that Student would benefit from continuing the remainder of the school year in an environment that is nurturing and can provide her with much needed support. She also recommended a summer program to help her to maintain a routine and make the transition to school next year easier. Student’s goal is to attend Newburyport Middle School next September. Ms. Crumb believed that if she is able to utilize these interventions and show progress that that option should be explored. She recommended weekly individual counseling to provide Student a forum to feel comfortable and discuss family dynamics. (P-4, S-32)

24. The Team drafted a Section 504 Accommodation Plan for Student during the May 6, 2005 meeting. Student was found to qualify for a 504 plan based upon her anxiety disorder that impacts her ability to feel comfortable “eating in front of other students, attending to classroom presentations, and participating in gym.” The accommodations provided are: weekly counseling with school counseling staff; establishing a relationship with a trusted staff member; positive reinforcement from teachers; providing Student with a “permanent pass” to access counseling staff; redirection and frequent teacher check-ins to ensure comprehension; family to pursue counseling and medication to help Student manage her anxiety; no participation in further school assessments at this time. If Student struggles academically in the public school setting, her parents or teachers will initiate an academic skills assessment. Parents are to be provided with bi-weekly academic progress reports. Father accepted the 504 plan. Mother signed the plan, but wrote, “[Student] should be on an IEP.” (P-2, S-33)

25. Ms. Frontierro testified that Student was not found eligible for special education after her assessment at MEC. She reiterated Ms. Crumb’s opinion that chaos relating to the separation of her parents was causing Student’s anxiety. She testified that Student was offered a summer placement at MEC even though Student had completed enough work to pass the seventh grade. Father did not think Student should be forced to attend summer school. He asked whether Student could go three days per week and Ms. Frontierro agreed that would be allowed. Father seemed to accept that. (Frontierro)

FINDINGS AND CONCLUSIONS:

The first issue before me is whether Student is entitled to an independent evaluation at public expense. Pursuant to state and federal law, a school district is required to evaluate a student in all areas of suspected disability. See 603 CMR 28.04(2); 20 U.S.C. sec. 1414(a)-(e). At the time that Ms. Frontierro received Mother’s request for evaluations, school personnel had not expressed any concern regarding Student’s academic performance. Student was doing well in all of her classes. (Frontierro) However, Student had been out of district for a year at a charter school and Ms. Frontierro thought the evaluations would yield helpful information and agreed to have her staff perform the evaluations. (Frontierro) In addition to the academic testing, Mother requested that Student be assessed by a behaviorist. Again, although no school staff member had expressed concern or noted behavioral difficulties, Ms. Frontierro requested that the behavior specialist observe Student. The behavior specialist did not find any behavioral issues, but wrote a behavior intervention plan to provide Student additional support in school. (P-5, pg. 54)

There is no evidence to suggest that the evaluations done by Hamilton-Wenham were anything but comprehensive and appropriate as required by 603 CMR 28.04(5)(d). Ms. Frontierro’s testimony regarding the thoroughness of the evaluations was credible, persuasive, and unrebutted.

The evidence also shows that Hamilton-Wenham was responsive to Student’s needs as they changed throughout the school year. When the district learned that Student had been hospitalized they became involved by attending a meeting with the Metro West Hospital staff. They proposed an extended evaluation to assess the emotional needs that had not previously manifested themselves at school. Hamilton-Wenham continued to support Student and sought to meet her needs when she decided to return to the middle school instead of attending the out-of-district placement it had secured. School staff immediately convened to determine what supports would help Student successfully integrate back into the middle school. Then, when Student decided to attend the MEC program, Hamilton-Wenham again supported her decision and worked with the MEC staff to transition Student to the program. There is nothing in the record to suggest that the extended evaluation done at MEC was not appropriate and comprehensive and I find that it was both. Based upon the foregoing, Student is not entitled to an independent evaluation at this time.

The second issue before me is whether Student should have been found eligible for special education during the 2004-2005 school year. Based upon the record, I find that Hamilton-Wenham’s determination that Student was not eligible for special education was appropriate. My reasoning follows.

Both Massachusetts and federal special education laws and regulations use a two-part test to determine whether a student is eligible for special education. First, a student must have one or more of the statutorily enumerated disabilities; and second, the student “ as a consequence [of the disability] [must be] unable to progress effectively in the general education program without specially designed instruction or [be] unable to access the general curriculum without a related service.” See 20 USC 1401(3); 34 CFR 300.7 and 603 CMR 28.02(9), MGL c. 71B, s.1.

The evidence shows that Student does not satisfy both of the above criteria. First, the evidence shows that Student has been formally found to have an auditory processing disorder and a rule out diagnosis of general anxiety disorder. (S-7, P-1) Dr. Najarian’s audiological report seems to indicate that Student has an auditory processing disorder, yet she did not recommend special education for Student. Instead, she recommended a number of accommodations that Hamilton-Wenham showed willingness to implement. Although Metro West made a rule out diagnosis of general anxiety disorder, that diagnosis was not supported by MEC’s extended evaluation of Student. MEC’s assessment of Student was that she was demonstrating a great deal of anxiety due to the situation occurring within her family, namely her parents’ separation and Student’s moving to a new home. Although Student has been seen throughout this school year by a psychiatrist, Dr. Syed, Mother did not submit any recommendations or diagnosis from him. MEC supported Student’s desire to attend the Newburyport Middle School in September and agreed with Hamilton-Wenham’s decision to place Student on a 504-accommodation plan to assist her with her transition to a new school in September.

The record shows that Student had a difficult year because of circumstances occurring within her family that caused her distress, not because of a disability. Hamilton-Wenham reacted appropriately to the situation by assessing Student in areas of suspected need and by considering Mother’s concerns until the number of assessments being requested became excessive. In addition to reacting compassionately to Student’s situation, Hamilton-Wenham provided Student with sufficient support to assist her in making a transition from one school district to another.

ORDER

Based upon the foregoing, Hamilton-Wenham is not required to provide funding for an independent educational evaluation. Additionally, Hamilton-Wenham’s determination that Student was not eligible for special education during the 2004-2005 school year was appropriate.

By the Hearing Officer,

____________________________________

Catherine M. Putney-Yaceshyn

Dated: July 14, 2005

1

Ms. Baker administered the Wechsler Intelligence Test for Children (WISC-IV); Behavior Assessment System for Children – BASC (self-report and teaching team report); Bender Visual Perceptual Motor Gestalt; Beery Visual Motor Integration (VMI); Wepman Auditory Discrimination; Draw a Person (DAP); Kinetic School Drawing (KSD); Kinetic Family Drawing (KFD); Sentence Completion Test; Guess Why Game; Tasks of Emotional Development; Adolescent Depression Scale; Minnesota Multiphasic Personality Inventory – Adolescent (MMPI-A); Student Interview Questionnaire.

2

Ms. Crumb utilized the following assessments: Pre-Referral Behavior Checklist, Achenback (parent and student versions), Beck Depression Inventory, Behavior Rating Scale (student version, Millon Adolescent Clinical Inventory, Drug Use Screening Inventory, Observation of Student, Interview with Parents.