Lincoln Sudbury Regional School District – BSEA # 10-6037



<br /> Lincoln-Sudbury Regional School District – BSEA # 10-6037<br />

COMMONWEALTH OF MASSACHUSETTS

SPECIAL EDUCATION APPEALS

In Re: Lincoln-Sudbury Regional School District

BSEA #10-6037

DECISION

This decision is issued pursuant to the Individuals with Disabilities Education Act (“IDEA”, 20 USC Sec. 1400 et seq.; as amended by P.L. 108-4461 ); Section 504 of the Rehabilitation Act of 1973 (29 USC Sec. 794); the Massachusetts special education statute or “Chapter 766,” (MGL c. 71B) and the Massachusetts Administrative Procedures Act (MGL c. 30A), as well as the regulations promulgated under these statutes.

A hearing took place on May 11 and 24, 2010 at the office of the BSEA in Malden, MA. The School District, which was the moving party in this matter, was represented by counsel. The Parents appeared pro se .

Those present for all or part of the proceeding were:

Student’s Mother

Student’s Father

Amy Butler Special Education Liaison, Lincoln-Sudbury RSD

Lynn Carlson School Psychologist, Lincoln-Sudbury RSD

Joanne Delaney Director of Student Services, Lincoln-Sudbury RSD

Heather Dwyer Guidance Counselor, Lincoln-Sudbury RSD

Alisia St. Florian, Esq. Attorney for Lincoln-Sudbury RSD

The official record of the hearing consists of School’s Exhibits S-1 through S-31, Parent’s Exhibits P-1 through P-22, and several hours of tape recorded testimony and argument. Upon request of the parties, a postponement was granted to allow the parties to submit written closing arguments. Closing arguments were received by June 10, 2010 and the record closed on that day.2

ISSUES PRESENTED

The sole issue presented for hearing is whether Lincoln-Sudbury Regional School District (L-S or School) may require Student to undergo projective and personality testing without the consent of the Parents, and over their objection, where the District asserts that it cannot otherwise provide Student with a free, appropriate public education (FAPE).

POSITION OF SCHOOL DISTRICT

Student’s currently-identified disabilities are ADHD and executive function deficits. Her current and proposed IEPs address needs in areas related to those disabilities, namely, study skills, organization, and self-advocacy/behavior. During 2009-2010, Student has displayed worrisome behavior that far exceeds the behavior expected from a student diagnosed with ADHD and executive functioning deficits.

This has led the School to suspect that Student may have additional, undiagnosed emotional disabilities that affect her functioning in school and interfere with her educational progress. The School needs to conduct a full neuropsychological evaluation order to learn whether Student has additional disabilities, and, if so, to determine appropriate educational accommodations and services. The School has chosen a qualified, experienced private neuropsychologist to conduct the evaluation. This evaluator must be allowed to conduct personality and projective testing if in his professional judgment he believes that such testing is appropriate.

Because the Parents have refused to consent to projective and personality testing, the School lacks sufficient information to develop an appropriate IEP for Student. Therefore, in order to ensure that Student receives a free, appropriate public education (FAPE), the BSEA should issue an order allowing such testing to take place over the Parents’ objection.

POSITION OF PARENTS

The School has failed to prove its assertions that Student’s behavior is beyond the scope of her ADHD and executive functioning deficits. In fact, each of the behaviors of concern to the School is a symptom of these previously-diagnosed disabilities. Moreover, while Parents share the School’s concern about the behavior at issue, much of that behavior is not unique to Student, but—unfortunately—also is displayed by a significant number of other students at L-S High School.

In addition, School also has failed to prove that projective and personality testing will provide accurate information that will assist in developing an appropriate IEP. On the contrary, current research shows that the testing sought by the School is not a reliable or valid diagnostic tool. Such testing tends to over-pathologize the person examined, causing false and potentially damaging diagnoses of mental illness or serious emotional disturbance. Moreover, the interpretation of test results is subjective, and susceptible to the biases of the examiner.

In Student’s case, there is a serious risk that testing done by the School will be affected by such bias, since the School already has unsubstantiated suspicions that Student has an emotional disability. Student should not be subjected to invalid, unreliable testing, which risks harming her with stigmatizing labels, without providing useful information for educational planning.

Despite their misgivings about projective testing, the Parents privately obtained an outside evaluation that included projective testing because they are concerned about their daughter’s well-being. This private evaluation was in process during the course of the hearing. Parents made clear at that time that they would provide the School with the evaluation results as soon as they became available. For this reason, it is unnecessary for the School to conduct its own such assessment.

SUMMARY OF THE EVIDENCE

1. At the time of the hearing, Student was a fifteen-year-old ninth grader at L-S High School. Student’s eligibility for special education and related services is not in dispute.

2. Student is described as a bright, creative, caring, and friendly young woman who wants to do well in school and attend a four-year college after graduation. Currently, Student demonstrates strengths in reading and writing fluency, vocabulary, word identification, and oral language. Testing performed in 2004 indicated cognitive functioning in the average to high-average range, with relative weakness in auditory processing and understanding abstract language. Student has strong athletic abilities and interests, and has been involved in at least one team sport. (S-2).

3. Student has a diagnosis of a specific learning disability as well as ADHD. The parties do not dispute that these disabilities affect Student’s executive functioning, expressive and receptive oral comprehension, and written language. Student’s ADHD and executive functioning weaknesses impair her organizational skills, focus and concentration, and test-taking skills. As a result, Student has difficulty organizing, focusing on, and completing assignments in a timely manner, and does not always take ownership and pride in her work. Additionally, the parties agree that Student can be impulsive, may respond inappropriately when redirected in class, and has cut classes, been tardy, and skipped detention. (S-2, S-4).

4. At the time of the hearing, Student was receiving services under a partially-rejected IEP issued in October 2009.3 This IEP contains two goals, in “organization/study skills” and “self-advocacy-behavior,” as well as numerous accommodations such as checklists and other organizational tools, preferential seating, extended time and alternate setting for tests when needed, as well as access to the special education liaison and guidance counselor as needed, if she felt overwhelmed. (S-3)

5. The IEP service delivery page lists, in grid C, four class periods per week of “academic support” with the “liaison/classroom teacher” to take place in the substantially-separate learning center. (Butler, S-3)

6. In November 2009, Parents provided the school with a lengthy written explanation of their reasons for partially rejecting the IEP. In sum, Parents felt that the IEP did not provide for enough support for Student as she transitioned from a highly structured middle school environment into high school, and did not appear to recognize the impact of Student’s learning disabilities and ADHD in academic and non-academic settings. Parents objected to proposed accommodations, which they viewed as vague and insufficient to address classroom needs stemming from both ADHD and executive functioning and memory issues. Parents also objected to omission and/or alleged insufficiency of accommodations and services addressing social/behavioral needs in non-academic settings, including school athletic teams, as well as the failure of the School to conduct a functional behavioral assessment (FBA). (S-4)

7. Notwithstanding their objections, Parents consented to implementation of the services and accommodations within the October IEP. (S-2)

Previous Evaluations

8. In November 2004, when Student was in fourth grade, she underwent a neuropsychological evaluation by Steffen Fuller, Ph.D., which included projective/personality testing.4

9. The projective and personality testing consisted of the Rorschach Ink Block Test (Rorschach), Thematic Apperception Test (TAT), Tasks of Emotional Development (TED), Sentence Completion Test, and Family and Classroom Drawings. Scores indicated that Student’s functioning was average and age-appropriate in the areas of coping skills, interpersonal relations, and response to emotionally-laden situations or stressors. (S-6) The record contains no reports of any projective testing after the 2004 evaluation.

10. Lincoln-Sudbury conducted a three-year re-evaluation in 2008, when Student was in seventh grade. The only document in the record from this evaluation is a learning assessment consisting of a report of a classroom observation and scores from Woodcock-Johnson-III achievement tests. This assessment concluded that Student’s overall academic performance was low-average to average, and deferred to the TEAM for specific recommendations.

Emotional/Behavioral Concerns Leading to Hearing Request

11. The record contains no evidence suggesting that Student presented with significant in-school behavioral or social-emotional problems prior to high school. Parents had their own concerns about Student’s behavior and emotional status during middle school, however. From March 2009, when Student was in eighth grade, to and including the dates of the hearing in this matter, Student received regular, private counseling sessions with a psychologist. (P-7) In a letter dated May 3, 2010, the psychologist stated that Student was using therapy to “address issues of identity, interpersonal relationships, her challenges with regulating emotions, self-injurious behavior, and her challenges with impulsive behaviors.” The letter further stated that while Student was not “suffering from a clinical depression or suicidality,” she sometimes became anxious, guilty, and self-critical over some of her decisions, putting her at “greater risk for self-injury (cutting).” (P-7) The record does not indicate whether Parents ever shared this letter with L-S High School staff prior to submitting it as an exhibit at this Hearing. The parties do not dispute, however, that Student’s guidance counselor and special education teacher knew that Student was receiving counseling.5

12. During 2009-2010, School staff members working with Student at LS High School became concerned about behavioral patterns as well as specific incidents and disclosures by the Student which led LS to request permission to conduct projective and personality testing of Student. (Delaney, Butler, Dwyer, Carlson)

13. Amy Butler was Student’s special education liaison for ninth grade. As such, Ms. Butler, who is a certified special education teacher, both provided direct instruction and served as the liaison with regular education teachers for students with whom she worked. Ms. Butler testified that she worked with Student at least four class periods per week in the Learning Center, where she provided Student with 1:1 help with organization, planning and completing assignments, test preparation, etc. Ms. Butler found Student to be bright, likeable, fun to work with and respectful. She testified that Student had strong reading and writing skills, did well academically with individual support, and was slowly learning to work more independently. (Butler)

14. Ms. Butler testified that she suspected that Student had emotional problems in addition to learning disabilities and ADHD. Ms. Butler pointed to the following specific behaviors: repeated lying, tardiness, leaving campus without permission (three times), acknowledged experimentation with cigarettes, alcohol and marijuana (outside of school), wearing overly revealing clothing despite advice and redirection, sneaking out of her house at night to go to an older boy’s house (on one occasion), and a history of self-injury (cutting her arms). (Butler)

15. Ms. Butler further stated that she did not know whether or not Student smoked cigarettes or used alcohol beyond occasional experimentation. Ms. Butler testified that Student had told her that she had not cut herself in some time. Regarding Student’s manner of dress, Ms. Butler testified that Student would put on a sweatshirt over her other clothing when asked, but would remove it later, and would have to be reminded to put the sweatshirt back on. The clothing issue was the subject of “constant conversation,” during which Ms. Butler advised Student that she was attracting the “wrong kind of attention” from boys by dressing provocatively. On at least one occasion, a male student in the learning center told Ms. Butler that Student’s revealing clothing made him uncomfortable. (Dwyer)

16. According to Ms. Butler, no single behavior (smoking, cutting class, tardiness, etc.) was unusual or necessarily alarming for a student at L-S High School. Even the self-injury was not unique to Student. What was unusual, however, was Student’s displaying so many behaviors at the same time, while she was only in ninth grade. In Ms. Butler’s experience, Student’s presentation in this regard was not typical for a child of her age, even one with ADHD or executive functioning problems. (Butler)

17. The School also provided testimony from Ms. Heather Dwyer, Student’s guidance counselor. During 2009-2010, Ms. Dwyer provided guidance services to approximately 210 children, including Student. Ms. Dwyer’s practice is to do initial outreach with the students on her caseload, then to respond to individual students as needed. Ms. Dwyer stated that she initiates contact with students if she notes “red flags,” such as slipping grades or attendance, repeated tardiness, behavior reports from other staff, course grade warnings, or frequent contact initiated by a student. (Dwyer)

18. Ms. Dwyer saw Student frequently during 2009-2010, often in her role as Student’s “advocate” in disciplinary situations.

19. Ms. Dwyer testified about specific behavioral incidents in which Student was involved or allegedly involved. The first such incident took place on or about September 15, 2009. Allegedly, while in a school stairwell, Student pushed a boy in front of her into a third student who was ahead of him. Reportedly, Student had had a conflict with the third student. No one fell or was injured. Ms. Dwyer accompanied Student to the disciplinary meeting with the school housemaster and to a peer mediation session. She felt that Student was concerned and worried about how she would be perceived, and showed remorse. The other student acknowledged contributing to the conflict with Student. Student was suspended for 2.5 days as a result of this incident. (Dwyer)

20. Another incident took place in October 2009, when Student was accused of pushing a large potted plant down a flight of stairs. Ms. Dwyer testified that Student denied pushing the plant even though another student had witnessed the incident. (Dwyer)

21. Throughout September and October of 2009, Ms. Dwyer was involved with Student because of numerous minor incidents and recurring problems, including arguing with staff, tardiness, problems in the cafeteria (for example, a food fight), and using her cell phone in class. Ms. Dwyer functioned as an advocate and advisor for Student at these times. Like Ms. Butler, Ms. Dwyer testified that Student continued to dress inappropriately despite advice from Ms. Butler and herself, and that Student had disclosed experimentation with cigarettes, alcohol, and marijuana. Ms. Dwyer observed that when confronted about misbehavior, Student struggled with emotional self-regulation and with telling the truth. (Dwyer)

22. A review of the Student’s disciplinary log shows approximately 23 disciplinary incidents recorded between September 18, 2009 (the stairway incident) and May 5, 2010. The most frequently occurring behaviors were cutting class, taking excessively long breaks from class, excessive tardiness to class, and then failing to attend the detentions that had been imposed as a consequence. Student was suspended for 2.5 days as a result of the stairwell incident referred to above, and one day for leaving campus without permission. (S-14, 15)

23. Student’s grades for the first semester of ninth grade were as follows: English 9-C+, Algebra –C-, Earth Science Lab-D, Group Exercise-F, Muscular Fitness-Pass, Painting-B, and Learning Skills-Pass. Her third quarter grades issued in April 2010 were: English 9–C-, Current World Issues–A-, Algebra–C-, Earth Science Lab–D+, Intro to Wellness–Pass, Drawing–B-, Learning Skills–Pass. (P-7)

24. On or about February 26, 2010, Student’s Wellness class took part in a suicide risk educational and screening program entitled “Signs of Suicide (SOS).” In pertinent part, this program consisted of a video designed to educate students about the symptoms of suicide risk and how to get help, followed by a written questionnaire designed to reveal whether the student completing the questionnaire was at risk of suicide him- or herself. The students completed the questionnaire during their wellness class. (Delaney, Carlson)

25. Of the six items in the questionnaire, Student answered “yes” to the following three: “[i]n the last 4 weeks, has there been a time when nothing was fun for you and you just weren’t interested in anything?; [d]o you think seriously about killing yourself?” and “have you tried to kill yourself in the past year?” (S-10)

26. L-S took no action until approximately three days after Student completed the questionnaire, at which time the wellness teacher communicated Student’s responses to Ms. Dwyer and Ms. Butler, as well as Ms. Lyn Carlson, the school psychologist. (Carlson, Dwyer) Ms. Carlson (who had had little prior contact with Student) interviewed Student, determined that Student was not at immediate risk, and then phoned Student’s Parents. This call was the School’s first notification to Parents that the SOS program had been presented and that Student had answered “yes” to three suicide screening questions. After speaking to Ms. Carlson, Parents arranged for Student to meet with one of her private therapists immediately after school.6 (Carlson, Dwyer)

27. Meanwhile in an email to Parents dated January 27, 2010, Ms. Butler and Ms. Dwyer first suggested a neuropsychological evaluation of Student, in order to “open a window into [Student’s] world that will help [the School] help her and also help [Student] understand herself.” (S-10 )

28. Parent responded the same day with an email stating that while she did not object to such an evaluation, she was concerned about confidentiality of the report. Parent also suggested a functional behavioral assessment. (S-10)

29. On or about February 2, 2010, the School sent Parents an email clarifying that L-S sought a personality assessment of Student rather than a neuropsychological evaluation focusing solely on learning disability issues, since staff felt they had sufficient information on the latter but not the former. In sum, the School believed the personality assessments would “really clarify what is going on” for Student and allow the school to “plan interventions more meaningfully.” The School proposed an evaluation by an outside clinician, Dr. Marcel Fajnzylber Ed.D. (S-10, Delaney, Dwyer, Butler)

30. Dr. Faijnzylber is a licensed psychologist who obtained an Ed.D. degree in counseling psychology in 1982. In addition to maintaining a private practice since 1989, Dr. Faijnzylber has worked as a consultant to various school systems, hospitals, and mental health clinics from approximately 1988 to the present. He also has taught undergraduate and graduate level courses in psychology at various universities and has provided clinical supervision since 1984. Since approximately The L-S Director of Pupil Services, Ms. Joanne Delaney, had had retained Dr. Fajnzylber previously to evaluate other students, both within L-S and in other districts, and found him to be experienced and knowledgeable. Parents reviewed Dr. Faijnzylber’s resume and did not contest his qualifications. (Delaney, S-13)

31. In an email response to Parents’ concerns about confidentiality of the evaluation report, Ms. Delaney stated that the report would remain in Student’s “file,” which would be returned to Student at graduation. (S-10)

32. In an email to Ms. Dwyer dated February 5, 2010, Mother stated that while she would contact Dr. Fajnzylber as suggested by the School, Parents had decided to have Student tested privately because they felt uncomfortable having the evaluation results in Student’s file. Parents would be willing to share the results of private testing directly with “select individuals,” such as Ms. Dwyer and Ms. Butler, whom Parents felt had Student’s best interests in mind. At some point, in mid to late February, Parents agreed to meet with Dr. Fajnzylber, but cancelled the meeting in late February 2010. (S-10)

33. The TEAM convened on February 24, 2010 to discuss additional accommodations for Student as well as the issue of further testing. On March 2, 2010, the School issued a formal proposal for a complete neuropsychological/psycho-educational evaluation to be completed by a second outside psychologist chosen by the School, Dr. Jerome Schultz, Ph.D. As reasons for the proposal, the N1 cited continued academic, social and behavioral struggles, despite support, leading to concern about “additional educational and psychological factors” impacting Student’s difficulty complying with rules and attending to academics. The N1 further stated the School’s belief that Student’s “symptoms extend far beyond those …typically…associated with diagnosed ADHD,” and that personality assessments or projective testing were needed to assess emotional functioning. (Delaney, S-10)

34. Dr. Schultz, the second clinician chosen by the School, is a clinical neuropsychologist with at least 25 years of experience in private practice. Dr. Schultz specializes in diagnosis and treatment of children and young adults with learning disabilities, ADHD, and other disabilities. He also provides case consultation and staff training and support to schools districts, has taught college courses in psychology for at least 25 years, and has been the co-director and founding director of two different child evaluation clinics. In addition to private clinical practice, Dr. Schultz has served as the co-director and founding director, respectively, of two diagnostic and treatment clinics and has taught psychology at the college level for at least 25 years. (S-12)

35. Parents and the School’s Director of Student Services, Ms. Joanne Delaney, exchanged numerous emails during March 2010 in which they discussed the positions of Parents and the School on personality and projective testing. In brief, the School took the position that they could not evaluate Student in all areas of suspected disability as required by IDEA without allowing the evaluator the latitude to exercise professional judgment on the instruments used, including projective measures, if appropriate. Parents objected to “subjective general psychological tests that are open to wide interpretation dependent on the skills and biases of the particular tester.”7 (S-11)

36. At no time did Parents contest the credentials or qualifications of either of the testers proposed by the School. In fact, after reviewing Dr. Schultz’ background information and speaking with him, Mother commented in an email to Ms. Delaney that Dr. Schultz “had great credentials, experience, and based on the conversation that [Mother] had with him, seems like an excellent possibility to do a neuropsych. evaluation…” Mother reiterated her objection to the “latitude” that Dr. Schultz’ requested in deciding what tests to administer, and wanted him to provide Parents with a complete list of all planned tests before Parents would be willing to consent to testing. L-S did provide Parents with a list of the tests from which Dr. Schultz planned to select his final battery, which list included personality and projective tests. Parents did not sign this consent form. 9S-11)

37. In an email dated March 10, 2010, Ms. Delaney informed Parent that the School would proceed to the BSEA for an order allowing testing over Parents’ objection unless Parents provided the requested consent within a week. (S-11)

38. In an email dated March 13, 2010, Parents explicitly rejected the narrative description of School District Proposal (which referred to personality and projective testing). Parents further stated that they would have “comprehensive neuropsych. testing” done by an outside evaluator and inform the School when the tests were completed. Ms. Delaney’s responsive email indicated that the School would proceed to conduct its own testing, notwithstanding Parents’ private evaluation. (S-11)

39. On March 22, 2010, Parents informed Ms. Dwyer that they were having Student evaluated by a psychologist at the Danielson Center at Boston University. (S-11) The evaluation had not been completed at the time of the hearing, and while Parents submitted the evaluation report with their written closing argument, it was not considered here for reasons stated in Note 2, above.

Testing Proposed by School

40. The School provided the testimony of Lyn Carlson, who is a school psychologist employed at L-S High School, and Ms. Joanne Delaney, Director of Student Services.

41. In sum, the testimony of Ms. Carlson and Ms. Delaney was that projective testing, such as the Rohrschach, and personality testing are useful components of a comprehensive evaluation of a student. These tests illuminate personality traits, unconscious motivations or emotional processes that may be affecting a student’s behavioral, emotional or educational performance, thereby enabling a TEAM to develop appropriate accommodations and services. While scoring and interpretation of these assessments involves some level of subjectivity, this does not undermine their value as a component of a full evaluation. (Carlson, Delaney)

42. Ms. Dwyer and Ms. Butler testified that they did not feel that they knew enough about Student’s profile, including her emotional status, to fully meet her needs. (Dwyer, Butler) Neither Ms. Delaney nor Ms. Carlson felt that Student’s needs could be accurately assessed without information from projective and personality testing. (Delaney, Carlson)

43. The qualifications and experience of School’s proposed evaluator, Jerome Schultz, Ph.D., are set forth above. Dr. Schultz did not testify at the hearing. As stated above, Parents do not contest Dr. Schultz’ qualification to evaluate Student.. (Delaney, S-10)

Parents’ Evidence Regarding Testing

44. Parents submitted documents addressing (1) the value of the SOS survey in predicting and/or preventing suicidal behavior; (2) the validity and reliability of projective and personality testing; (3) the prevalence, statewide and at L-S High School, of the type of behavior exhibited by Student. (4) symptoms of ADHD and executive functioning deficits; Each of these groups of documents will be addressed in turn, below.

45. SOS Survey : Parents submitted one 2004 article published by the U.S. Department of Health and Human Services (HHS), Agency for Healthcare Research and Quality. (AHRQ), U.S. Preventive Services Task Force (USPSTF). This article concluded that “the evidence is insufficient to recommend for or against routine screening by primary care clinicians to detect suicide risk in the general population.” Parents also submitted a 2007 research article from the publication “BMC Public Health” entitled “Evaluating the SOS Suicide Prevention Program: a Replication and Extension.” This article concluded that the SOS survey that L-S had used was “the only universal school-based suicide prevention program to demonstrate significant effects of self-reported suicide attempts in a study utilizing a randomized experimental design. Moreover, the beneficial effects of SOS were observed among high school-aged youth from diverse racial/ethnic backgrounds, highlighting the program’s utility as a universal prevention program.” (P-3)

46. Projective and Personality Testing : Parents submitted numerous publications including book reviews, a law review article, a psychology research article and a university psychology course outline which presented various viewpoints on the validity and reliability of projective testing for various purposes, including the view that such testing has become controversial, should not be used for forensic purposes (e.g., in child custody cases), but may provide useful guidance to a therapist in a clinical setting. (P-4)

47. Youth Risk Behavior Surveys :8 Parents submitted the results of a 2004-2005 Youth Risk Behavior Survey (YRBS) for the L-S High School. The survey results revealed “some disconcerting behaviors” among L-S High School students who participated in the survey, including binge drinking (24%), deliberate self-injury (20%), coming to school “high” (12%) and attempting suicide (8%). Other behaviors assessed included cigarette smoking, sexual activity, marijuana use, fighting, bullying/being bullied. (P-5)

48. ADHD Symptoms : Finally, Parents’ exhibits include various articles about ADHD symptoms—including lying and non-compliance with adult rules and requests–as well as recommendations regarding behavioral treatment and accommodations for children and teens with ADHD. (P-6)

49. Neither party called witnesses to testify about the currency, accuracy, or reliability of any of the publications submitted or their applicability to Student’s educational program.

50. As stated above, Student sees two therapists, neither of whom testified at the hearing. Neither the witness testimony nor the documents in the record disclose any oral or written communication between L-S employees and either therapist, and the record contains no evidence that the Parents have authorized any such communication. Neither therapist has attended TEAM meetings.

51. The sole evidence on the record related to Student’s private counseling is the letter of Student’s treating psychologist dated May 3, 2010, referred to above. Other than ruling out major depression or suicide risk as of the date of the letter, this letter contains no formal diagnosis, makes no statements regarding Student’s needs within the school setting, makes no recommendations other than for continued individual psychotherapy, and says nothing about whether or not Student should be evaluated further. (P-7)

FINDINGS AND CONCLUSIONS

As the moving party seeking to change the status quo, the School carries the burden of persuasion in this matter. See Schaffer v. Weast , 546 U.S. 49, 44 IDELR 150 (2005). After careful review of the testimony and documents on the record as well as the parties’ arguments, I conclude that Lincoln-Sudbury has met this burden. The preponderance of credible evidence on the record supports a finding that the Parents’ refusal to consent fully to the evaluation requested by the School impedes the School’s ability to provide Student with a free, appropriate public education (FAPE). The documents and arguments submitted by Parents, as well as the testimony they elicited from the School’s witnesses, failed to refute the evidence presented by the School. My reasoning follows.

The IDEA and Massachusetts law require the School is to evaluate eligible or potentially-eligible students in all areas related to the child’s suspected disability, in order to ensure that services are individually tailored to meet all of that child’s unique needs. 20 USC Sec. 1400(d)(1)(A)-(B); 20 USC Sec. 1414(b)(3)(B); 34 CFR 300.304(c)(4); 603 CMR 28.04(2)(a). It is well-settled that those needs may be “academic, physical, emotional or social.” Lenn v. Portland School Committee , 998 F. 2d 1083, 1089 (1 st Cir 1993), cited in Mr. and Mrs. I. v. Maine School Administrative District No. 55 , 47 IDELR 121 ( 1 st Cir. 2007).

Federal and state law require school districts to obtain parental consent before conducting such evaluations, either before determining eligibility (initial evaluations) or periodically, afterwards. 20 USC Sec. 1414(a)(B) and (c); 34 CFR Sec. 300.300(a) (for initial evaluations); 34 CFR Sec. 300.300(c) (for re-evaluations); 603 CMR 28.07(1). Federal law also permits states to establish an “override procedure” to permit schools to evaluate students without parental consent if 20 USC Sec. 1414(a)(1)(D) and (c); 34 CFR 300.300(c), 603 CMF 28.07(1)(b).

In the instant case, the evidence provided by both parties indicates that Student’s diagnosed ADHD, executive functioning problems, and learning disabilities have had a negative impact on her educational progress, as have certain related behaviors, such as skipping class, being frequently tardy, not completing assignments, and leaving class. Further, Student has engaged in behavior and made disclosures that—very reasonably—have caused both the School and Parents to be concerned about her safety and well-being.

The parties disagree on the appropriate response to these concerns. The School asserts that Student’s profile suggests a possible emotional disability in addition to her diagnosed ADHD, executive functioning deficits, and learning disabilities; however, the School cannot determine if Student does, in fact, have such a disability or develop an appropriate IEP if she does, without a thorough, current evaluation. The School further contends that projective and personality testing may be an appropriate component of such an evaluation to shed further light on Student’s needs.

Parents, on the other hand, argue that Student’s behavior is representative of that of a sizeable number of L-S High School students, can be explained entirely by her already-diagnosed disabilities, and can be addressed by more or different accommodations and services that reflect a better understanding of those disabilities. The only testing needed to enable the School to better serve Student are some cognitive and speech-language assessments and a functional behavioral assessment. The testing sought by the School, in Parents’ view, is subjective, controversial, and unlikely to yield accurate results, and the record of testing is potentially damaging to the Student.

The preponderance of credible evidence on the record supports the position of the School. Student clearly needs further evaluation, and the evaluator must be free to administer personality and/or projective testing if, in the evaluator’s professional judgment, such testing is appropriate. The Parents’ failure to allow such testing impedes the ability of the School to provide Student with FAPE.

In reaching this conclusion, I give significant weight to the testimony of Ms. Dwyer and Ms. Butler regarding both Student’s presentation at school and their need for further information to serve her effectively. Both of these professionals met with Student frequently during 2009-2010. Ms. Butler worked with Student nearly every day. Ms. Dwyer saw her often, many times in the context of disciplinary issues. Both witnesses clearly know Student well, like her, and are invested in her success. Both testified candidly and persuasively that they felt Student had significant unmet needs, and they lacked enough information to help her as effectively as she needed.

Moreover, their testimony that Student’s profile was not typical of an L-S High School freshman with ADHD was highly credible. Both Ms. Dwyer and Ms. Butler are well-situated to draw that conclusion. They have daily experience working with other students at this large high school, including students with a variety of special needs. While the behavior of other L-S students (as reported in the Youth Risk Behavior Survey referred to above) is irrelevant to the issue of whether this Student needs further evaluation, Ms. Dwyer’s and Ms. Butler’s observations regarding Student’s “fit” with the rest of the L-S student population, or lack thereof, lend credence to their concerns about Student.

Although the School’s witnesses, Ms. Delaney and Ms. Carlson, testified only generally about the rationale for seeking personality and/or projective testing, the School has met its burden of demonstrating that refusal to allow such testing could deprive Student of FAPE. Both Ms. Carlson and Ms. Delaney acknowledged that there may be some subjectivity in scoring projective/personality tests, but noted that these tests would not be the sole instruments used to assess any student. In their experience, they have found that such tests provide information about a student’s motivations and emotional status that can be useful for formulating an IEP, when administered as one portion of a comprehensive evaluation. Both witnesses testified that neither objective neuropsychological or educational testing nor a functional behavioral assessment would not necessarily yield the information provided by the projective and personality instruments. I found the testimony of both of these witnesses to be credible and persuasive.

Parents neither testified themselves nor called their own witnesses. They did, however, cross-examine the School’s witnesses extensively and also submit the documents referred to above. Neither the testimony elicited by Parents nor their exhibits refuted the School’s evidence.

In response to cross-examination, witnesses acknowledged that Student clearly is not the only L-S High School student who has tried alcohol, cigarettes, and marijuana, who has dressed inappropriately, engaged in self-injury, been tardy, skipped classes and detentions, told lies, or pushed another child. Despite this acknowledgement, however, the witnesses steadfastly and credibly stated that the degree, frequency, and intensity of these behaviors, occurring at the same time, together with such factors as difficulty with self-regulation and the troubling answers to the SOS survey, led them to conclude that further evaluation was essential. Moreover, as stated above, if members of the TEAM have good reason to believe, as they did here, that Student might have needs that were not adequately understood or addressed, they were not only allowed but obligated to seek further evaluation, regardless of the behavior of other L-S students.

The School’s witnesses also acknowledged that they could not conclude with certainty whether or not Student’s difficulties all stemmed from ADHD, executive functioning deficits, and/or learning disabilities.9 However, it is not the job of Student’s guidance counselor or special education liaison to pre-determine Student’s diagnoses. Rather, the School’s duty is to secure an evaluation by an appropriately qualified professional once it is on notice of possibly undiagnosed disabilities that affect Student’s educational progress.

Put another way, the School’s uncertainty about the connection, or lack thereof, between Student’s ADHD and her behavior does not restrict its ability to obtain a comprehensive evaluation. On the contrary, such uncertainty compels the School to do so, particularly where, as here, (1) the Student’s behavior interferes with her educational progress, (2) has persisted despite much individual attention by Student’s special education liaison and guidance counselor, outside counseling by two therapists, and consistent involvement by committed and knowledgeable parents and (3) implicates her safety and well-being, regardless of the etiology of that behavior, regardless of whether other L-S students behave similarly, and regardless of whether L-S staff concerns are greater than warranted by the actual circumstances.10 See, for example, the BSEA decision in In Re: Duxbury Public Schools and Ishmael , BSEA No. 07-2419 (Byrne, 2007)

Finally, through cross-examination and documents, Parents sought to establish that personality and projective testing is invalid, unreliable, and potentially harmful to Student. This assertion must be examined in light of the applicable portions of federal and state law.

The IDEA requires schools to do the following to assure that testing is done appropriately:

A. use a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information, including information provided by the parent, that may assist in determining—
(i) whether the child is a child with a disability; and

(ii) the content of the child’s [IEP]…

B. not use any single measure or assessment as the sole criterion for…determining an appropriate educational program…

C. use technically sound instrument that may assess the relative contribution of cognitive and behavioral factors…

20 USC Sec. 1414(b)(2)(A) through (C)

Additionally, 20 USC Sec. 1414(b)(3)(A) through (B) requires school districts to ensure that

A. assessments and other evaluation materials used to assess a child…
(iii) are used for purposes for which the assessments or measures are valid and reliable…

(iv) are administered by trained and knowledgeable personnel;

(v) are administered in accordance with any instructions provided by the producer of such assessments.

B. the child is assessed in all areas of suspected disability.

The corresponding federal regulations track the language of the statute and, additionally, specify that the required evaluation in “all areas related to the suspected disability” may include assessment of the child’s “social and emotional status,” 34 CFR 300.304(b)(4). The regulations further require schools evaluations to be “sufficiently comprehensive to identify all of the child’s special education and related services needs, whether or not commonly linked to the disability category in which the child has been classified.” 34 CFR Sec. 300.304(b) through (c) Massachusetts state regulations require assessments to be “adapted to the age of the student” to “meet the evaluation requirements set out in state and federal law,” to be administered by “appropriately credentialed and trained specialists.” 603 CMF 28.04(2)11

In the instant case, the Parents assert that projective and personality testing is not necessarily valid or reliable, that scores on some tests (e.g. the Rohrschach) may reflect the tester’s bias, and that some such tests “over-pathologize” test subjects, i.e., give rise to false diagnoses of mental illness. Parents fear that subjecting Student to such testing would potentially stigmatize Student with inaccurate, pejorative labels without yielding results that are useful for educational purposes. The Parents argue that rather than administer projective tests, the School should gain a better understanding of Student’s ADHD and related learning issues by means of objective cognitive and academic testing and a functional behavioral assessment.

Parents’ argument is thoughtful and seems based on a genuine and reasonable concern about potential stigmatization of Student by tests whose scoring systems may involve some subjectivity. Parents have failed to demonstrate, however, that to allow a neuropsychologist (Dr. Schultz, in this case)12 to conduct one or more projective tests as part of a comprehensive battery consisting mostly of objective cognitive assessments, would be either harmful or unreliable for educational purposes.

On the issue of reliability of the result of test instruments, Parents presented no witnesses with relevant expertise to challenge the School’s testimony about the value of the tests, or to explain and discuss the articles Parents submitted. As a result, the Hearing Officer has no basis for giving any weight to the articles and the testimony of the School’s witnesses is unrefuted.

Even assuming, argued , that the various articles are truthful, reliable, and generally accepted in the appropriate scientific community, they seem to state only that projective test results should not be used for forensic purposes, but could be useful to guide clinical interventions. Here, as stated above, the School seeks to grant discretion to Dr. Schultz to use the results of such testing in precisely the manner approved by its critics—to plan services for the Student. The School does not seek to have these tests administered in isolation, relied upon as the sole measure of Student’s abilities and needs, or used to “prove” anything about Student.

Similarly, Parents have presented no evidence to indicate that Student will be harmed by administration of the requested evaluations. Neither of Student’s two psychotherapists—either through oral testimony or in writing—made any statements about the need, value or potential harm of projective testing for the Student. Further, in email correspondence with the Parents, Ms. Delaney indicated that the School would limit access of School personnel to test results, and also return the test reports themselves to Student after graduation, if desired.

The Parents argue that the School cannot conduct projective testing over their objection because they have arranged to have that testing done privately and to submit the private evaluation results to the TEAM for consideration. The pertinent law does not support this argument. While the TEAM must consider the results of outside evaluations if the Parents ask them to do so, the School retains the right to conduct its own evaluation as well. See: In Re: Scituate Public Schools , BSEA No. 07-6746 (Putney-Yaceshyn, 2007) and provisions cited therein. (Obviously, the School’s evaluator would need access to the private evaluation in order to plan his or her own evaluation)

Finally, it should be noted that Parents are not without recourse here. Under federal and state law, they are entitled to dispute the School’s evaluation once it is performed, as well as any IEP or amendment that incorporates that evaluation. In so doing, Parents may request an independent evaluation or seek to have the School rely on the Parents’ recent private evaluation instead of all or part of the School’s assessment. Parents may pursue due process if they cannot reach agreement with the School.

RULING AND ORDER

Because the Parents’ refusal to consent to the evaluation proposed by the School constitutes a barrier to provision of FAPE, the School may conduct this evaluation without consent of the Parents. The School may modify its proposal issued in March 2010 (Ex. S-2) in light of the passage of time and recently-completed private evaluation, as deemed appropriate by the School’s chosen evaluator.

By the Hearing Officer:

____________________ _____________________________

Sara Berman

Dated: July 21, 2010


1

Individuals with Disabilities Education Improvement Act of 2004, or “IDEA-2004”


2

Parents submitted, with their written closing argument, a report of a recent evaluation conducted by the Danielson Center at Boston University. This evaluation, which Parents had obtained privately, was in process at or near the time of the hearing. The Parents had not included this report in their original exhibits, (probably because the evaluation had not been completed). Parents did not ask permission to file the report as an additional exhibit before the record closed, and did not request the Hearing Officer to reopen the record. Therefore, this document will not be added to the record and will not be considered in issuing this Decision. Even if the Parents had made a timely request to add to report to the record, the School would have been entitled to object to its admission on several grounds: timeliness, relevance, and the fact that the TEAM had not yet considered the report. If the report was accepted as an exhibit, the School would have the right to present testimony about the report, both from School witnesses and from the report’s author.


3

This IEP is an amended version of an IEP proposed in June 2009, which also was partially rejected. No action was taken at the BSEA regarding the June IEP. (S-4)


4

The evaluation report indicated that Student had a “mild to moderate” learning disability in the areas of language arts and auditory processing, as well as a secondary diagnosis of ADHD. The report recommends various accommodations and services including tutoring, academic support from an aide or learning center, and possible “targeted counseling” to address “anxious mood” related to facing new and challenging learning situations. (S-6)


5

At the time of hearing, Student was working with a behavioral therapist in addition to the counselor referred to above. (S-10)


6

Parents were distressed that the School did not inform them about Student’s survey responses until three days after the survey was given.


7

On several occasions, Parent requested and consented to administration of the WISC-IV, CELF and an FBA. The School agreed to conduct this testing. (S-10, 11)


8

According to an article dated January 7, 2010 on the Mass. DESE website, DESE, in collaboration with the Centers for Disease Control and Prevention (CDC) and the Mass. Department of Public Health (DPH) conducts the YRBS in randomly selected public high schools in every odd-numbered year. The YRBS is an anonymous survey focusing on tobacco, alcohol and drug use, unprotected sexual activity, harmful eating behaviors, and behaviors associated with intentional or unintentional injury. DESE does not report results for individual school districts, but districts may—and L-S did—conduct their own surveys with the assistance of DESE. (P-5)


9

I give little weight to the articles about ADHD symptoms and treatment that Parents submitted as exhibits. Parents provided no testimony or other evidence about the currency, reliability or accuracy of the articles, or about how these articles were applicable to Student. Moreover, as stated above, the information in the articles has no bearing on whether the School may conduct the evaluations it seeks.


10

Parents argue that to seek projective testing in response to Student’s behavior is either excessive or misdirected. If the Parents are correct, and the School has overreacted, and/or projective tests are irrelevant or inappropriate, the evaluation sought by the School will, itself, validate the Parents’ position. Under the circumstances of this case, however, L-S has both the right and duty to obtain information, not deprive itself of it.


11

While this regulation refers specifically to initial evaluations, it is obviously appropriate for application to re-evaluations as well.


12

Parents have not contested Dr. Schultz’ qualifications.


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