COMMONWEALTH OF MASSACHUSETTS
BUREAU OF SPECIAL EDUCATION APPEALS
In re: John1
BSEA #06-4949
DECISION
This decision is rendered pursuant to M.G.L. Chapters 30A and 71B; 20 U.S.C. §1400 et seq.; 29 U.S.C. §794; and the regulations promulgated under each of these statutes.
A hearing in the above-entitled matter was held on July 18, 2006 at the Bureau of Special Education Appeals in Malden, MA. The record remained open for receipt of final exhibits until August 2, 2006.
Those in attendance were:
Susan Dupuis Director of Special Education/Pupil
Personnel Services, Marshfield Public Schools
Gerard O’Sullivan Teacher, Marshfield Public Schools
Mary Ellen Sowyrda Attorney, Marshfield Public Schools
Richard Connolly Director, Bureau of Special Education Appeals, Observer
Raymond Oliver Hearing Officer, Bureau of Special Education Appeals
The evidence consisted of Marshfield Public Schools’ Exhibits labeled S-1 through S-15; and approximately two hours of oral testimony.
HISTORY/STATEMENT OF THE CASE
John is a 16 year old young man who resides with his Parents in Marshfield, MA. John attended the Marshfield Public Schools (MPS) from kindergarten through grade 5 at the Governor Winslow School and grades 6 to 8 at the Furnace Brook Middle School. He has been functioning under individual education plans (IEPs) since first grade. Due to numerous behavioral/disciplinary/attendance/absence issues, an IEP was developed by MPS and accepted by Parents which placed John at the North River School of the North River Collaborative (NRC) for his eighth grade school year (2003-2004). John was terminated from NRC in April 2004 due to issues involving drugs and alcohol. John received home tutoring until the end of the school year. During the 2004-2005 school year John attended the CHARMSS Collaborative Massapoag School where negative behaviors and attendance issues again impacted on John’s performance. At a team meeting on February 15, 2005 it was decided that due to extensive behavioral concerns and alleged drug abuse disclosures to Massapoag staff that John be home tutored for the remainder of the 2004-2005 school year and attend the Marshfield Alternative High School (MAHS) in the fall of 2005. (See testimony, Dupuis; S-1,10,11,13,14.)
Pursuant to an IEP accepted by Parents on July 21, 2005, John was to attend MAHS for the 2005-2006 school year. However, John attended MAHS from September through November 23, 2005 when MAHS closed due to non-renewal by the Massachusetts Department of Education. Out of 51 possible days at MAHS John was absent 11 days, excused an additional 7 days, and suspended 3 days. (Testimony, Dupuis; S-1, 4, 8, 10). Tutoring was reinstituted for John. On November 30, 2005 a team meeting took place and MPS proposed an IEP Amendment for an out of district day school or collaborative placement to be determined. On November 30, 2005 Parents gave their consent for MPS to send referrals to NRC; Pilgrim Area Collaborative; South Shore Educational Collaborative; Massasoit School; and the Southeast Alternative School (S-5, 7). Pilgrim Area Collaborative rejected John. NRC also rejected John due to prior lack of progress there and the lack of staff to deal with his complex behaviors. Southeast Alternative School (SEAS); Massasoit School (Massasoit) and South Shore Educational Collaborative (SSEC) are all open to the possibility of John placement there but Parents have either not contacted these programs/visited there programs for an interview and/or when contacted have expressed that they were not interested. (See testimony, Dupuis; S-1). Parents desire John to return to a placement at Marshfield High School. (See testimony, Dupuis; S-4, 6.)
On February 1, 2006 MPS sent Parents another copy of the signature page of the IEP Amendment. On February 15, 2006 another team meeting took place. Parents emphasized that they would not send John out of town but wanted him to attend Marshfield High School (Testimony, Dupuis; S-1, 6). On March 5, 2006 MPS filed the unsigned IEP with the BSEA as a rejected IEP. A mediation was scheduled for March 28, 2006 but Parents failed to attend (Testimony, Dupuis; S-1). On April 14, 2006 MPS filed a hearing request with the BSEA for John to be placed on an extended evaluation at an appropriate day school program and an automatic hearing date was scheduled for May 19, 2006. Several postponements were granted. A pre-hearing conference call took place on June 27, 2006 but settlement was not possible and a hearing was scheduled for July 18, 2006. On July 6, 2006 MPS sent Parents a formal proposal for an extended evaluation (S-4). Also on July 6, 2006 a final evidentiary pre-hearing conference call took place in which the issues for hearing were delineated and the July 18, 2006 hearing date was re-affirmed.
On July 17, 2006 Father orally requested a postponement. BSEA instructed Father to put such a request in writing and fax it to the Hearing Officer and MPS’ attorney. BSEA informed Father that absent MPS’ consent or a very compelling reason a postponement request would not be granted at this late date. Father’s written request arrived at BSEA on the day of the hearing, July 18, 2006. Parents did not appear and MPS personnel were already present at BSEA for the hearing. Father and MPS spoke by phone. MPS opposed Father’s request for postponement. The Hearing Officer denied Father’s request for postponement. Parent did not appear for the hearing and stated that the hearing was under his protest. The hearing then took place.
ISSUES IN DISPUTE
1. Is MPS’ proposal for an extended evaluation for John in an appropriate day school or collaborative program such as Massasoit, SEA or SSEC appropriate for John at this time?
2. If not, can a program at Marshfield High School (MHS) provide John with a free and appropriate public education (FAPE) in the least restrictive educational environment (LRE)?
3. If not does John require continued home tutoring?
STATEMENT OF POSITIONS
MPS’ position is that John requires an extended evaluation at Mossasoit, SEAS or SSEC beginning in September 2006. MPS contends that such extended evaluation should include a functional behavioral assessment (FBA); social/emotional inventories; and formal and informal observation. MPS recommends a small, structured program with therapeutic supports for emotional disabilities. If Parents request an independent evaluation, MPS will find such an evaluation at established rate setting rates. MPS recommends that John accept an extended evaluation and that if he meets specific goals regarding behavior, attendance and academic achievement for the 8 weeks of the extended evaluation, the team shall reconvene to consider his educational progress and consider a transition plan to a less restrictive educational environment such as a substantially separate program at MHS. Marshfield opposes continuation of home tutoring given that John is currently in tenth grade and the restrictiveness of such a placement.
Parents’ position , gleaned from the documents and the testimony of Ms. Dupuis, is that John should not be placed out of district but should attend MHS.
PROFILE OF STUDENT
John’s last psychological evaluation took place in December 2004. John did not want to participate in any testing, but after discussion and negotiation he agreed to be tested on the Wechsler Intelligence School for Children – 4 th edition (WISC-IV.) John received the following scores on the WISC-IV yielding the following percentiles (%) and placing him at the following cognitive levels (See S-10 for complete evaluation):
WISC-IV Area Tested Score % Cognitive Level
Verbal Comprehension Index 81 10 Low Average
Perceptual Reasoning Index 77 6 Borderline
Working Memory Index 74 4 Borderline
Processing Speed Index 78 7 Borderline
Full Scale IQ 72 3 Borderline
John received an FBA from the May Institute in June 2002 (S-14) when he was 12½ years old and ending the sixth grade at Furnoce Brook Middle School in MPS. The primary behaviors of concern were: 1) Poor school/class attendance; 2) Behavioral outbursts; 3) Defiance; 4 Work refusal 5) Disrespect to adults and 6) Poor attention/low on task behaviors. These behaviors manifested themselves when any demands/requests were made of John or he was faced with a challenging task. On the Walker-McConnoll Scale of Social Compelence and School Adjustment, John’s social behavior was significantly below that of school age peers at a .3 percentile compared to his peers (average range of 25 th – 75 th percentile). In 2002 John was reportedly diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) and Oppositional Defiant Disorder (ODD). He was prescribed medications which he reportedly took inconsistently. (See S-14).
SCHOOL’S PROPOSED PROGRAM
MPS proposes that John receive an eight (8) week extended evaluation at Massasoit, SEAS or SSEC. Massasoit and SEAS are private day school placements while SSEC is a collaborative placement. All of these programs/placements serve students of John’s age who have serious learning, behavioral or emotional problems which are precluding such students from a successful public school experience. All provide specific academic, behavioral and therapeutic interventions for students with ADHD, ODD, aggression, low frustration tolerance, high risk profiles, and a range of learning disabilities. All are highly structured, behaviorally modified programs with both individual and group counseling within an overall therapeutic milieu. All conduct FBAs. The goal of all is to facilitate the student’s return to a public school setting. (See testimony, Dupuis; S-15.)
FINDING AND CONCLUSIONS
It is confirmed by the evidence presented that John is a student with special education needs as defined under state and federal statutes and regulations. The fundamental issues in dispute are listed under ISSUES IN DISPUTE , above.
Based upon the oral testimony and written documentation introduced into evidence and a review of the applicable law, I conclude that:
I. MPS’s proposed extended evaluation of John for 8 weeks in a structured, therapeutic
educational setting is the appropriate course of action at this time for John.
II. John requires a comprehensive re-evaluation in neuropsychological, academic,
emotional, social and behavioral areas of functioning.
III. The three programs proposed by MPS are appropriate to conduct an 8 week
diagnostic evaluation of John.
My analysis follows.
John has a history of behavioral, emotional and social disabilities which have negatively impacted upon his ability to make effective progress in school. He has a low threshold for stressors and frustration. He has developed entrenched strategies for dealing with stresses/frustrations which are more common to younger children in lower grade levels such as avoidance behaviors, non compliance behaviors, passive and active oppositional posturing, defiance, and other forms of acting out in a classroom seeting. In addition to these ongoing inappropriate behaviors in school and significant attendance issues, John has issues of substance abuse within school. ( See S-1, 3, 4, 7, 8, 9, 10, 11, 13, 14; testimony Dupuis; O’Sullivan.)
Of particular significance is that John’s behavioral issues have manifested themselves not only within MPS public school placements but also in collaborative/out of district placements to the extent that John was terminated from both NRC and Massapoag. ( See S-1, 3, 10, 13; testimony, Dupuis.) Further, such behavioral issues also manifested themselves during the two month period from September through November 2005 when John attended MAHS. Mr. O’Sullivan, John’s homeroom, math and social studies teacher at MAHS testified that John could remain focused on schoolwork for only about 90 minutes before he shut down, refused to do work and asked to leave, called Parents to be dismissed, or left MAHS without authorization. Mr. O’Sullivan testified that John did not buy into the point/level system used at MAHS and that when John refused to cooperate/engaged in non-complaint behaviors, he sometimes tried to engage other students to go off task and threw things. Mr. O’Sullivan also testified regarding John’s self-reported drug use/taking drugs not prescribed for him. (See testimony, O’Sullivan; S-8.) Given that John’s behavioral, emotional and social disabilities are still manifesting themselves to such a degree that he has significant problems in more restrictive, small group placements outside of MPS, I find no evidence that John is currently prepared to meaningfully participate in a program/placement at MHS, a large regular education public high school environment.
The most current evaluation of John is the WISC-IV administered in December 2004. Older behavioral evaluations are dated 2001 and 2002. (See S-10, 14.) Given the dearth of current evaluative data, and given John’s current behavioral, emotional, social and academic difficulties, I conclude that John requires comprehensive, updated evaluations in order to appropriately address his special education needs. In addition to the FBA, Emotional and Social Inventory, and formal and informal observation listed on MPS’s proposed Extended Evaluation (S-4), I find that John requires both a neuropsychological evaluation and a psychoeducational evaluation to provide current information regarding John’s intellectual abilities/cognitive processes; emotional/personality functioning; behavioral and social functioning; learning style; academic skills/achievement levels in reading, math, spelling and writing; attention; memory; executive functioning; and overall language functioning.
The written evidence submitted (S-1, 15) and the testimony of Ms. Dupuis indicates that all of the three proposed placements which are still willing to consider John could provide him with an appropriate 8 week extended evaluation within a structured, therapeutic educational and clinical milieu with strong behavioral supports and behavioral management systems (See also SCHOOL’S PROPOSED PROGRAM , above.) Such programs would work with John to develop appropriate behavioral strategies to help keep him on task academically; to remain in school to access the educational curriculum and therapeutic counseling services provided; and to facilitate his successful return to a public school placement.
I strongly encourage Parents to accept an extended evaluation at Massasoit, SEAS or SSEC, with the additional evaluations delineated above, so that the complex constellation of John’s special education needs may be most appropriately addressed. I also encourage John to take ownership of his maladaptive behaviors, to actively participate in the extended evaluation process, and to work cooperatively with Massasoit, SEAS or SSEC staff to develop appropriate strategies so that he will become able to transition back to a MHS placement as soon as possible. At age 16½ this opportunity may well be John’s last and best chance for educational success.
ORDER
I. An eight week extended evaluation of John as proposed by MPS in S-5 at either Massasoit, SEAS or SSEC is the appropriate course of action for MPS to take in regard to John at this time with the following amplification listed
in II, below.
II. In addition to the FBA, Emotional/Social Inventory and formal/informal observations listed on S-5, MPS shall perform or arrange to have performed a neuropsychological evaluation and psychoeducational evaluation to provide current, comprehensive evaluative data regarding John’s intellectual abilities/cognitive processes; emotional/personality features; behavioral and social functioning; leaving style; academic skills/achievement in reading, math, spelling and writing; attention, memory; language functioning; and executive functioning.
By the Hearing Officer,
__________________________
Dated: August 4 , 2005
Raymond A. Oliver
1
John is a pseudonym chosen by the Hearing Officer to protect the privacy of the Student in publicly available documents.