Re: Williamstown Public Schools – BSEA #04-4917



<br /> Re: Williamstown Public Schools – BSEA #04-4917<br />

COMMONWEALTH OF MASSACHUSETTS

BUREAU OF SPECIAL EDUCATION APPEALS

In Re: Williamstown Public Schools BSEA # 04-4917

RULING ON MOTION FOR EXTENDED EVALUATION

This ruling is issued pursuant to the Individuals with Disabilities Education Act (20 USC 1400 et seq .), Section 504 of the Rehabilitation Act of 1973 (29 USC 794), the state special education law (MGL ch. 71B), the state Administrative Procedure Act (MGL ch. 30A) and the regulations promulgated under said statutes.

An evidentiary hearing was held on June 8, 2004 in Springfield, MA before William Crane, Hearing Officer. Those present for all or part of the proceedings were:

Student’s grandmother

Grandmother’s fiancée

Efrat David Therapist, Mass. Society for Prevention of Cruelty to Children

Andrea Tallboy Special Education Teacher, Williamstown Public Schools

Charlene Candiloro Assistant Teacher, Williamstown Public Schools

Kelly Garrison Assistant Teacher, Williamstown Public Schools

Edmund Haddad Special Education Consultant, Williamstown PS

Michael Singleton Administrator of Special Education, Williamstown PS

David Brown Program Director, Walnut Hill at Mohawk

Kathryn Rucker Attorney for Grandmother and Student

Peter Smith Attorney for Williamstown Public Schools

The official record of the hearing consists of documents submitted by Student’s grandmother (Grandparent) and marked as exhibits P-1 through P-28; documents submitted by the Williamstown Public Schools (Williamstown) and marked as exhibits S-1 through S-26; and approximately nine hours of recorded oral testimony and argument. Oral closing arguments were made on June 8, 2004, and the record closed on that date.

In order to apprise the parties in a timely manner of the decision in the case, an Abbreviated Ruling was issued in advance of the full text of this Ruling. See Appendix A.

PROCEDURAL HISTORY

On May 21, 2004, Student filed with the BSEA an expedited Hearing Request , alleging among other things that except for services offered during the week of May 17, 2004, Student had been excluded from his educational program since May 5, 2004. The BSEA granted the Hearing Request expedited status, with a Hearing date of June 1, 2004. Pursuant to a conference call with the Hearing Officer on May 27, 2004, the attorneys for the parties reported to the Hearing Officer that the Student had been allowed to return to school and to attend his current educational placement, thus resolving the principal reason for the expedited status of the Hearing Request .

During the May 27 th conference call, the attorneys indicated the need for an expedited resolution of a disputed issue regarding further evaluations of Student – that is, whether further evaluations are needed and if so, whether an extended evaluation should be ordered. The parties agreed to a June 8, 2004 Hearing date to address Williamstown’s anticipated Motion for Order for Extended Evaluation .

Later that day on May 27, 2004, Williamstown filed its Motion for Order for Extended Evaluation which is the subject of this Ruling. Through its Motion , Williamstown seeks an eight week extended evaluation of Student at the Walnut Hill at Mohawk program (Walnut Hill).

ISSUE

Should Williamstown be allowed to conduct an eight-week extended evaluation of Student at Walnut Hill?1

POSITIONS OF THE PARTIES

Williamstown takes the position that it does not currently have sufficient information to develop an IEP that would satisfy its responsibility to provide an appropriate education for Student, nor does it have sufficient information to complete a manifestation determination. Williamstown argues that through an extended evaluation, it would be able to obtain assessments and information which are essential to its development of an appropriate educational program and placement for Student.

Grandparent opposes the Motion , taking the position that a BSEA Hearing Officer does not have the authority to order the proposed evaluation over the objection of the guardian. Grandparent further argues that such an evaluation is not needed because Williamstown already has sufficient evaluative information regarding Student. Grandparent also raises the concern that the proposed extended evaluation (in particular, transportation to and from Walnut Hill) may be harmful to Student.

FACTS

A. Student’s Profile, Services and Placement .

Student is an eleven-year-old boy (date of birth 5/21/93) who lives in Williamstown, MA, with his maternal grandmother (Grandparent) who is also his legal guardian. Student has been characterized as an extremely social and enthusiastic young man who thoroughly enjoys engaging others in conversation. Testimony of Grandparent; exhibits P-13, S-13.

Student has been diagnosed with Pervasive Developmental Disorder Not Otherwise Specified (PDD), Post Traumatic Stress Disorder (PTSD), verbal apraxia and Reactive Attachment Disorder. Exhibits P-13, P-26, S-13, S-18. The PTSD diagnosis is based, in part, on a reported history of neglect and exposure to violence, including repeated episodes of witnessing or experiencing trauma. Testimony of Grandparent; exhibits P-24, S-18, S-20.

Student is in the 5 th grade in a substantially separate classroom within the Williamstown elementary school. Placement and services for Student are pursuant to a fully-accepted IEP. Testimony of Tallboy; exhibits P-13, S-13.

During the school day, Student has minimal contact with regular education students, except during lunch, recess and gym. He currently has two dedicated aides assigned to him. It is not unusual for Student to receive his educational services without other children present. Pursuant to his IEP, Student receives a half hour of speech language services twice each week and a half hour of occupational therapy twice each month. Behavioral consultation is provided by Dr. Edmund Haddad for three and a half hours each week. Testimony of Haddad, Tallboy; exhibits P-13, S-13.

In addition to these services described within the IEP, Student receives home-based services for two hours each day, provided by the Mass. Society for Prevention of Cruelty to Children and paid through Grandparent’s insurance. These services include individual and family therapy to help Student with his history of trauma, as well as work on his daily living skills and social skills. For the past four or five years, Student has also been seeing a psychiatrist (Matthew Freedman) once every two months for medication review and management. Testimony of Grandparent, David; exhibit P-14.

B. Behavioral History .

Student has exhibited significant behavior difficulties, which have been documented by Williamstown staff since December 2003 when Student was first enrolled in the Williamstown schools (Student had been enrolled in the North Adams schools). Student’s behavior difficulties have included hitting and kicking staff, spitting on staff, throwing furniture at staff, thrashing at staff and headbutting staff. This behavior has also included Student’s slamming his head into the wall. Less severe behaviors have included grabbing, pushing, pinching staff, use of rude and hateful language and obscene gestures, and otherwise touching staff without permission. Testimony of Tallboy, Candiloro; exhibits S-8, S-9, S-16, S-17, P-3, P-4, P-7.

The most serious behaviors, which have occurred only occasionally (once a month or so), have resulted in injuries to staff on two occasions. One injury was a split lip as a result of headbutting. The second injury was whiplash which kept the assistant teacher out of work for three weeks. The less extreme behaviors, described above, have occurred more frequently (at times, daily). Testimony of Tallboy, Candiloro; exhibits S-8, S-9, S-16, S-17, P-3, P-4, P-7.

The frequency and severity of Student’s behavior incidents towards Williamstown’s staff have increased over the past month or so. During this time, Student has also begun exhibiting more aggressive behavior towards his peers and more self-abusive behavior. As a result, Student has been increasingly isolated from his peers (making it not possible for him to work on developing his social skills) and he has been increasingly unavailable for other learning. Currently, some (and perhaps nearly all) staff who work with Student are afraid of him. Testimony of Haddad, Tallboy, Candiloro.

Williamstown developed an “Emergency Behavior Management Plan” for Student dated March 12, 2004. The plan describes how staff are to respond (and how staff are not to respond) when Student’s behavior escalates. However, this plan has not allowed Williamstown staff an effective means of working with Student’s behaviors. Testimony of Haddad, Tallboy; exhibit P-21, S-14.

Grandparent reported that although Student’s behavior outbursts at home are not as frequent as at school as a general rule, Student exhibits similar aggression (including kicking, hitting and throwing objects) towards her at home. She explained, however, that during the past four of five months, Student’s behavior has shown substantial improvement at home, with Student’s aggressive behaviors occurring less frequently and those behaviors which do occur being not as severe. With the assistance and guidance of Ms. David, Grandparent has learned how to identify early on Student’s potential aggression and to de-escalate many of Student’s maladaptive behaviors. For example, Grandparent has learned how to use humor to distract Student and calm him down, and she has learned from Ms. David to use a communication board that helps Student to communicate (and calm down) when he becomes upset. She explained that often it is how others respond to Student that causes his frustrations, particularly when demands are placed upon Student.

C. Need for an Out-of-District, Therapeutic Placement .

Student’s special education teacher (Ms Tallboy) testified that as a result of Student’s behavioral difficulties, her school is not a therapeutic milieu for Student. She explained this further by stating that because of his behavior, the Williamstown Public Schools is not a placement where Student can continue to make educational progress. She opined that this is because Student has underlying psychological issues which the school (including the school psychologist) are not able to address. She added that there is not sufficient expertise within the Williamstown public schools to provide counseling for someone with the intensity of special education needs demonstrated by Student.

Dr. Haddad testified that, in his opinion, the complexities of Student’s profile make a public school setting inappropriate for Student, and that he requires a substantially separate, therapeutic placement.

Ms. David testified that with respect to Student’s school placement, he would be best served in a therapeutic day program, rather than within the Williamstown public schools.

D. Testimony and Report of Edmund Haddad .

Edmund Haddad testified that he received his masters degree in special education in 1972 and his PhD in special education in 1985; since 1983 he has provided special education consultation, and has taught college and graduate level courses at the Massachusetts College of Liberal Arts in North Adams. He noted that over the past ten years, most of his consultation has been in the area of autism, and he has taught courses at the graduate level regarding modification of a curriculum to accommodate a student’s behavioral and emotional difficulties.

Dr. Haddad testified that since January 2004, he has been engaged by Williamstown as a behavior consultant for three and a half hours each week regarding Student; his role has been to attempt to provide guidance regarding interventions that may be used by Williamstown staff to address Student’s behaviors. He explained that during the three and a half hours each week, he observes Student, typically in the classroom.

Dr. Haddad testified that in anticipation of Student’s May 11, 2004 IEP Team meeting, he prepared his draft report. Exhibits P-17 and S-15. He explained that although the document is marked as a draft, it is a final document in that it accurately reflects his opinions and recommendations regarding Student.

Dr. Haddad testified, and his report further explains, that significantly compounding the challenge of working safely and effectively with Student and his behaviors is that, in the words of Dr. Haddad’s draft report, “[p]hyscial assaults will often arise seemingly from nowhere” since Student’s behaviors are seldom a reaction to a specific situation or request but rather to Student’s perception of them. Dr. Haddad explained that this has made it more difficult for staff to identify the antecedents or “triggers” to his behavior; and, as a result, staff have not been successful in developing proactive responses, and most reactive responses have been ineffective as a future deterrent. Exhibits P-17, S-15.

In his report, Dr. Haddad, further explained that any behavior plan for Student “must be approached with the understanding that much of Student’s behavior is driven by internal rather than external stimuli.” The report notes that the stimuli are from his early childhood experiences and “are merely ‘triggered’ by events at home or school.” Dr. Haddad testified that his reference to Student’s early childhood experiences is Student’s history of trauma and neglect. Exhibits P-17, S-15.

Dr. Haddad testified that as a result of Student’s childhood trauma and its influence on Student’s behavior, he recommended more of a therapeutic approach, and less of a classical approach of behavior modification to address Student’s aggressive and maladaptive behaviors. In Dr. Haddad’s opinion, without such an approach, the adults in Student’s life are only reacting to his behaviors without addressing Student’s underlying issues and therefore these interventions would not likely be effective. He concluded that at this time, an effective intervention technique is not available to address and accommodate Student’s behavioral needs in an academic setting.

Dr. Haddad testified that he envisioned the appropriate therapeutic approach for Student to include medication and formal individual therapy by a psychologist or psychiatrist, although he noted that, because of his behavior, Student may not presently be available to participate effectively in formal therapy. He further stated that for this purpose, he supported an extended evaluation that would allow for a review of Student’s medications and the exploration of the possible benefits of formal therapy. He also explained that it would be helpful for there to be staff observation of Student during the evaluation, particularly as Student is (hopefully) stabilized within the extended evaluation placement. He recommended that another neuropsychological evaluation occur as part of the extended evaluation because the most recent neuropsychological evaluation did not provide reliable information. Dr. Haddad also supported the extended evaluation since the evaluations which have occurred to date are either not current or not complete. On cross-examination, Dr. Haddad indicated that he was not aware that Student was currently being seen by a psychiatrist in the community for purposes of medication management.

Dr. Haddad testified that the extended evaluation should occur in a residential setting so that Student can be observed at different times of the day. He believes that limiting the observation and evaluation of Student to the hours of the school day would likely compromise the effectiveness of an extended evaluation and therefore an extended evaluation of Student in a day placement would be of only limited value.

Dr. Haddad testified that the most important educational skills for Student to learn at this time are his social skills, since this will allow him to participate and access other peers, either informally or in groups, and thereby allow him to learn from his peers. He explained that the development of social skills cannot be learned in isolation, and that currently Student is spending much of his time isolated from other students.

In his report, Dr. Haddad also recommended a three-part behavioral plan: (1) a structured application of time out, (2) a system of positive reinforcement, and (3) a more effective communication system which allows for breaks in Student’s activities. Exhibits P-17, S-15.

Dr. Haddad testified regarding the questions asked in Student’s manifestation determination. He stated that he believes that the first three questions can be answered. He opined that Student’s disability does not preclude him from having the capacity to know that engaging in the behavior was wrong, that Student’s disability does not impair his awareness and understanding of the impact and consequences of his behavior, and that Student’s disability impairs his behavior controls (however, later in his testimony Dr. Haddad appeared to qualify these statements). He indicated that the IEP Team is able to answer these questions although further evaluation would be helpful to determine why Student’s disability impairs his behavior controls and therefore what may be done to address his behavior difficulties. Exhibit S-11 (first three questions starting near the bottom of the sixth page of the exhibit). He further noted that until an appropriate clinical intervention is found that will help Student, his disability and behaviors are “inextricably bound”.

Dr. Haddad testified that he was aware that Ms. David was providing Student with therapy within the home, and he has reviewed Ms. David’s recommendations regarding behavioral approaches for Student. However, he questioned whether the home was the most effective place for therapy, and he doubted the generalizability to other environments of many of the behavior strategies developed by Ms. David for the home. He further testified that he is in agreement with Ms. David’s February 18, 2004 report (exhibits P-15, S-10) and believes it offers significant potential for helping Student, but that in the short term, it does not provide answers for what is happening in school where a climate cannot be created that is free of behavioral triggers. He added that some of what Ms. David is recommending “is simply not an option” in a school environment. He further explained that the recommended approaches set forth within Ms. David’s June 4, 2004 letter (exhibit P-27) are “by and large” being applied in school.

E. Testimony and Report/Letter of Efrat David .

Efrat David testified that she received her BA degree in special education in 1986, and taught for several years as a special education teacher. She explained that she received her masters degree in mental health counseling and therapy in 2000, and through a year-long internship received training in treating persons who have been sexually abused. She stated that from 1991 through the present, she has worked in the area of home-based services for children on the autism spectrum.

Ms. David testified that she has known Student since November 2003 when she did an initial assessment of him (including an observation of Student in school) for purposes of determining Student’s need for home-based services. She began providing direct services to Student in February 2004. Her services have included direct therapy to Student for two hours each week and a third hour spent with Grandparent. In addition, Ms. David supervises two intensive case managers who provide home-based services to Student. Student receives a total of two hours of home-based therapy each day.

Ms. David testified that Student probably was sexually abused and that he is “hungry” for human contact. She has found that Student has autistic-like behaviors and is cognitively delayed, with limited ability to talk about or otherwise deal with his emotions. Because addressing Student’s behavior is of primary importance, she has made this her first priority. She noted that Student’s behavior deficits include aggression, violation of the personal boundaries of others, and failure to follow directions.

Ms. David testified that Student has been traumatized not only by events in his early childhood but by interventions of his caregivers – for example, time out and restraint interventions. Ms. David explained that, consequently, Student has an aversion to any possibility of failure which might in turn result in a corrective intervention, with the result that he tends to escalate when he is underperforming. Similarly, Student demonstrates hypervigilence when any demands are placed on him, perhaps because he associates this with negative consequences.

Ms. David testified that she is only in the beginning stages of her work with Student, but that some of her work has been effective in understanding what triggers his violence. Now, when his behavior escalates, she is able to find an explanation for it, and usually she is able to pick up on his behavior during the early stages of the escalation and work with Student to calm him down.

Ms. David testified that Student has very strong reactions (he is “actively reactive”) to anyone seeking to control him. Therefore, she noted that traditional behavior modification techniques using positive and negative reinforcements to motivate him are not effective. She noted that when time-out techniques were used in the home, they were a “complete failure”, resulting in the escalation of his behavior.

Ms. David testified that in working with Student, she has used a more “invitation” approach, rather than placing direct demands upon Student. She explained that this approach has succeeded in Student’s gradually allowing her to take the lead in giving him directions. She explained that her work with him has resulted in the development of a trusting therapeutic relationship with Student, which can serve as a foundation from which (eventually, she hopes) she will be able to use more traditional therapy techniques to work with his PTSD and reactive attachment disorder.

Ms. David testified that through her work with Student, his ability to talk about his emotions has improved; Student is better able to assess the appropriate distance between himself and another; and he has improved his ability to read facial expressions of those he is with.

Ms. David testified that in addition to training the other two home-based workers regarding the above-described interventions and techniques, she has trained Grandmother to respond to Student in a more effective manner. Through these techniques, Grandmother has learned how better to place demands upon Student, establish parental boundaries, and at the same time minimize his negative reactions that may result from these demands and boundaries.

Ms. David testified that she also has an hour each week allotted for collaboration with Williamstown staff. Ms. David explained that she had hoped that the interventions which have been successful at home could be effective in school. She believes that many of Student’s challenges at home are the same as during the school day, so that many of her techniques and interventions could be helpful to school staff. Ms. David also noted, however, that the techniques and interventions she has developed with Student are non-traditional and it could be a “stretch” to apply them within a school environment – the school may not be sufficiently “confident” to implement her approach.

Ms. David testified that notwithstanding her many offers and attempts to collaborate with Williamstown staff, there has not been sufficient response from Williamstown for this to occur in a way that would allow Williamstown to apply in a consistent manner at school what she has found to be successful in the home. Having not been given an opportunity to discuss her ideas with Williamstown, she wrote her letter of June 4, 2004 to Dr. Singleton, describing her interventions to Williamstown. Exhibit P-27.

In her “Assessment of need for Behavioral Intervention for [Student]” dated February 18, 2004, Efrat David noted that aggression of youth with disabilities in the Autism Spectrum (which includes PDD) “is often very difficult to treat” and generally requires consistent and repetitive behavior treatment across both school and home settings. She further explained that at puberty, it will likely be even more difficult to control Student’s behaviors, and “his environment will be less tolerant of it.” She concluded: “I see this time as possibly the last window-of-opportunity to help [Student] overcome the above [behavioral] challenges.” Exhibits P-15, S-10.

Ms. David testified that she first heard of Walnut Hill through the testimony of Mr. Brown. She indicated that she has a number of concerns regarding Student’s being placed in this program for an eight-week extended evaluation. First, the program appears not to have expertise regarding students with cognitive delays who are on the autism spectrum. Second, she is concerned about Student’s safety and how he would react to the interventions used within this program. Third, she believes that a 50-minute car ride each way to and from Walnut Hill may be dangerous to Student since when Student becomes frustrated and does not have a way to resolve these frustrations, his behavior can become extreme, including self-abusive behavior (for example, head-banging). (Ms. David noted that she has ideas as to how, over a period of time, Student could learn to travel safely for 50 minutes.) Fourth, she is concerned that since Student quickly imitates what he sees, the aggressive behavior of other children in the program could have a detrimental effect upon him. Fifth, she noted that Walnut Hill’s primary form of intervention appeared to be through groups, and in her experience, Student is not yet ready to participate in groups of students. Sixth, she testified that Walnut Hill does not have staff within the program who would provide the specialized treatments needed by Student (for example, psychiatric treatment) and that Student’s current psychiatrist would be the person most experienced with Student’s psychiatric needs.

F. Walnut Hill .

David Brown testified that he is currently and has been since September 2003, the program director for Walnut Hill, and previously for five and a half years, was the program director for the program that was the predecessor to Walnut Hill. He explained that he oversees the operations of the program, including the behavioral interventions that are part of the program.

Mr. Brown testified that Walnut Hill serves students with a variety of diagnoses, including ADHD, ADD, PTSD and bi-polar. He noted, however, that there are no students with autism at Walnut Hill. He explained that students in his program have verbal and physical aggression which impacts upon their learning, and that the program is designed to work with these issues.

Mr. Brown testified that Student would be in a class of eight other children, and that the class would have a special education teacher, a senior counselor and two other counselors (or behavior interventionists). He explained that the program has a full-time program clinician (this person has a masters degree but Mr. Brown did not know the subject of the masters degree), a clinical director who was half-time on site (this person has a masters degree in art therapy), and a full-time manager.

Mr. Brown testified that Walnut Hill has an academic curriculum which follows the Mass. Curriculum Frameworks. He opined that Walnut Hill would be able to provide the services described within Student’s IEP and would be able to fulfill the IEP’s goals and objectives.

Mr. Brown testified that at Walnut Hill there are clinical support groups twice each week – for example, addressing anger management and interpersonal skills. He noted that Walnut Hill does not provide any individual therapy, but would work with any outside therapists.

Mr. Brown testified that he believes that other students at Walnut Hill have demonstrated the kinds of behaviors which Student has, although no one student at Walnut Hill has had the same combination of behavior difficulties as Student. He explained that the approach taken by staff at Walnut Hill to behavior difficulties is to follow a hierarchy of interventions – time-out within class, time-out outside of class, and restraint. He noted that there are not any different strategies or approaches that are utilized with students with PTSD.

Walnut Hill has accepted Student for an eight week extended evaluation. Walnut Hill’s literature indicates that it serves students with a variety of disabilities, including autism, PDD, and behaviorally disordered. Its clinical services include case management, group therapy, parent support group, crisis assessment and psychological evaluation and testing. Student to staff ratio is 3:1. Exhibit S-4.

Williamstown’s Director of Special Education (Dr. Singleton) testified that it takes approximately 45 to 50 minutes to drive between Williamstown and Walnut Hill. He further explained that Williamstown has obtained a former police car, with a barricade between the front and rear seats, in which Student could be transported between home and Walnut Hill. He noted that in addition to the driver, a second adult would ride in the front seat, with Student alone in the rear seat.

G. Additional Evaluations .

A neuropsychological evaluation on February 6, 2004 by William Goodman, PsyD, was inconclusive. The report concluded that Student’s distractibility, impulsivity, poor focusing and planning (as well as difficulties in understanding his speech) rendered unreliable the standardized testing. During the evaluation, Dr. Goodman observed Student to be “an extremely hyperactive, impulsive, and difficult to manage child who needed constant redirection during the assessment and needed firm limit setting.” During the assessment, Student engaged in such behaviors as taking the pen away from the examiner, attempting the gauge the table with the pen, and taking the stopwatch. Dr. Goodman found that some of Student’s behaviors appeared to be entirely impulsive and without purpose, while at other times it seemed to be “quite deliberate and an attempt to provoke a response”. With respect to Student’s behavior difficulties, Dr. Goodman’s evaluation report only referred to what he described as the “many excellent recommendations made by Ms. David and Dr. Haddad”. Exhibit P-18, S-19.

In “ Guidelines for Working with [Student] ”, dated July 23, 2001, Jan Doody noted that behaviors which occur during respite with Student are spitting, hitting (with his hands and with objects), pinching, swearing, running off, throwing objects, making obscene gestures, screaming and destroying property. Exhibit P-23.

A “ Comprehensive Diagnostic Evaluation ” of Student was conducted during a residential stay at Hillcrest Educational Centers, Inc. in Pittsfield, MA. Student was admitted for purposes of this evaluation on February 7, 2001. Testing included a psychiatric evaluation, psychological evaluation, speech language evaluation, physical exam, nutritional assessment and occupational therapy screening. The evaluation report noted that Student has “an early history of neglect, traumatic events (police raids), possible abuse, and stunted relationships with primary caregivers. He has also endured developmental delays along with speech impairments.” The evaluation found that these circumstances have led to Student’s becoming “frustrated, aggressive, assaultive, startled easily, and impulsive.” During his evaluation, Student spent the majority of the first week in “time-outs” and at times lengthy physical restraints or holds. However, with structure and consistency, his behaviors improved significantly, indicating his ability to learn alternative behaviors and have positive interactions with others. The evaluation report recommended a highly-staffed, structured residential program which specializes in PDD to help address Student’s behavioral, emotional, and speech language deficits. Exhibits P-24, S-20.

The psychiatric portion of the evaluation, completed by a child and adolescent psychiatrist (Dr. Yamini) concluded that “no further evaluation is needed at this point given that repeated evaluations, which mean placing this child in extremely unfamiliar settings, will further disrupt the routine of this child’s life and will traumatize him further.” Exhibits P-24, S-20.

In a “ Summary of Service and Recommendations ” by Robin Phaneuf, MA, dated October 1, 2000, it was observed that Student engages in behavior of screaming, being “aggressive”, spitting, swearing, or exposing himself to gain attention. The evaluator concluded that these behaviors serve three functions: attention getting, gaining access to desired items or activities, and escaping or avoiding tasks or demands. The report recommended coordinated and structured efforts at home and school to address his “extremely challenging behavior”. Exhibit P-25.

DISCUSSION

A. Introduction and Regulatory Standards .

Williamstown’s request for an extended evaluation is made pursuant to 603 CMR 28.05(2)(b) which reads as follows:

Evaluation information is inconclusive . If the Team finds the evaluation information insufficient to develop an IEP, the Team, with the parent’s consent, may agree to an extended evaluation period.

1. The extended evaluation period shall not be used to deny programs or services determined to be necessary by the Team. If, prior to the extended evaluation, the Team determines that sufficient information is available to identify some necessary objectives and services, the Team shall write a partial IEP that, if accepted by the parent, shall be immediately implemented by the district while the extended evaluation is occurring.

2. The extended evaluation period shall not be used to allow additional time to complete the required assessments under §28.04(2)(a).

3. If the parent consents to an extended evaluation, the Team shall document their findings and determine what evaluation time period is necessary and the types of information needed to develop an IEP, if appropriate. The Team may decide to meet at intervals during the extended evaluation, but in all cases shall reconvene promptly to develop or complete an IEP when the evaluation is complete.

4. The extended evaluation may extend longer than one week, but shall not exceed eight school weeks.

5. The extended evaluation shall not be considered a placement.

Pursuant to a May 11, 2004 IEP Team meeting, an Extended Evaluation Form was completed for purposes of conducting such an evaluation at Walnut Hill. In box # 2 of the form the question is asked: “What type(s) of additional information is needed?” Williamstown has written the following response on the form: “How do his disabilities effect behavior? What are alternatives? What are effective behavior interventions?” Exhibit S-3. It is this information which Williamstown believes is necessary in order to determine Student’s educational needs and how they should be met.

Williamstown’s attorney has also made it clear that he believes that the extended evaluation is necessary in order for Williamstown to have sufficient information to complete its manifestation determination of Student, which was begun during the May 11, 2004 IEP Team meeting. Exhibit S-11. However, needing additional information for this purpose is not included within the grounds relied upon within Williamstown’s Motion for Order for Extended Evaluation . Exhibits S-2, P-2.

A BSEA Hearing Officer has the authority to order an evaluation “when necessary to determine the appropriate special education for the student”.2 I rely on this authority as setting forth the regulatory standard for purposes of my determining whether to allow Williamstown’s Motion .

B. The Parties’ Expert Witnesses and the Nature of Student’s Disabilities .

Of the witnesses who testified in this case, two are experts, each with significant expertise and experience regarding special education students and how their needs should be met. These two experts (Dr. Haddad and Ms. David) also both have particular expertise regarding some of the deficits demonstrated by Student and each has either worked directly with or observed Student for sufficient periods of time (although within different environments) to gain significant understanding of Student.

These experts differ somewhat regarding certain aspects of Student’s disabilities – for example, Dr. Haddad concluded that Student demonstrates cognitive abilities and engages with his world in a way that indicates that Student does not fall on the autism spectrum, while Ms. David believes that Student exhibits behaviors typical of children with autism and may be understood within that context. They also differ on the applicability to the school environment of Ms. David’s successful home-based interventions.

Notwithstanding what differences they may have, however, these two experts share a common view of Student as a victim of abuse and neglect during his early childhood years. They also both appear to agree regarding the critical impact of this trauma on Student and his maladaptive behavior. Accordingly, both experts agree on the futility of using a traditional behavior modification approach, with positive and negative reinforcements applied after the fact, and both emphasize the need for a therapeutic approach which seeks to understand and respond appropriately to Student as a victim of abuse and neglect.

I note that, although both were credible witnesses, it is only Ms. David who has demonstrated expertise relevant to working with children who are survivors of abuse. In addition, it is relevant that Ms. David (and not Dr. Haddad) has worked directly with Student as Student’s therapist, relating and interacting with him directly (as compared to simply observing him) and seeking to find opportunities to build a relationship with him. And, it is particularly noteworthy that Ms. David’s work in diminishing Student’s violence, as well as her ability to train others (including Grandparent) to reduce Student’s violence, is apparently the only known success that any professional has had with behavioral interventions, other than the experience reported during the residential evaluation at Hillcrest Educational Centers in 2001. Ms. David’s experience with Student, combined with her relevant expertise in this area, allows Ms. David to testify with significant insight into Student, his needs and how they might be met.

I therefore find (and it is not disputed) that an appropriate evaluation of Student must carefully consider and understand Student as a survivor of abuse and neglect. Although I find both Dr. Haddad and Ms. David to be expert and credible witnesses, I am guided, in particular, by the insights and recommendations of Ms. David given her knowledge and experience regarding childhood trauma, and her success with Student.

C. Preliminary Objections to Motion .

Grandparent, through her attorney, raises at the outset four objections to Williamstown’s Motion for an order for an eight-week extended evaluation at Walnut Hill.

First, Grandparent asserts that an extended evaluation, as described in the above-quoted regulations, is intended to assist the school district with the initial development of an IEP. In the instant dispute, there already is an agreed-upon IEP. Second, Grandparent argues that an extended evaluation may not be used for placement of a student. An eight-week extended evaluation at Walnut Hill would, in Grandparent’s opinion, essentially be a placement within that program. Third, Grandparent takes the position that an extended evaluation may not occur without the parent’s or guardian’s consent, which has been withheld in this case. Fourth, Grandparent takes the position that the appropriate mechanism for what Williamstown is seeking would be a request for interim alternative educational placement pursuant to 20 USC 1415(k)(2) and (3), and 34 CFR 300.521 and 300.522, and therefore Williamstown is improperly making a request for an order for extended evaluation.

Each of these objections requires consideration and analysis. Because of the expedited nature of this case, neither party was given an opportunity to provide written argument. Grandparent’s oral argument raised these objections without analysis, and Williamstown’s oral argument did not address these objections. Because of my conclusion regarding the merits of Williamstown’s Motion , I find that it is not necessary to resolve these four preliminary objections, and, for the above-stated reasons, I decline to do so.

D. Williamstown’s Need for Additional Information to Address Student’s Behaviors .

Williamstown correctly emphasizes that Student has significant maladaptive behaviors which have become noticeably worse over the past month or so at school. Of most concern are the two incidents when staff were physically injured, as well as Student’s increased self-abusive behavior and his apparently beginning to direct some of his aggression towards his peers. The undisputed evidence is that this has occurred, and that as a result, Student has become increasingly unavailable for education (particularly to address the important area of social skill development). Williamstown takes the position that it is no longer able to provide Student with an appropriate education. Testimony of Haddad, Tallboy, Candiloro; exhibit S-2.

As Williamstown has correctly pointed out, the kinds of aggressive violence that have been occurring within the Williamstown schools have been documented back to at least 2001. There is no record of any progress in addressing these difficulties within the school context, except for gains made during the course of the residential evaluation in 1991 at Hillcrest Educational Centers. Exhibits P-23, P-24, P-25, S-20.

It is also not disputed that what has made this behavior particularly difficult for Williamstown staff to address successfully in school is that much of Student’s behavior is driven by internal rather than external stimuli. The internal stimuli appear to be from his early childhood experiences of trauma and neglect. It has not been possible for Williamstown staff to anticipate and therefore prevent Student’s violent behaviors, nor have these behaviors been responsive to after-the-fact traditional behavior modification techniques of positive and negative reinforcements. Testimony of Haddad; exhibits P-17, S-15.

I also agree with Williamstown’s perspective that since Student has come into the Williamstown schools in December 2003, it has been unable to understand sufficiently what causes Student’s behavior and therefore how it can be addressed. No adequate behavior strategies and interventions have been identified or utilized by Williamstown.

For these reasons, I concur with Williamstown that it is in need of additional information in order to determine Student’s educational services and placement.3 I now turn to the question of whether an eight week evaluation at Walnut Hill is reasonably calculated to provide the information needed by Williamstown.

E. Walnut Hill as an Appropriate Program to Evaluate Student .

The need for expertise regarding childhood abuse . As discussed above, it is not disputed that in order to respond appropriately to Student, one must recognize, understand and be able to work effectively with a child with a significant history of abuse and neglect. One would therefore expect that the evaluation of Student should be done by persons, including therapists or clinicians, who have substantial expertise and experience in this area. For example, it may be possible for an experienced therapist to work with Student to develop successful approaches and interventions within the school environment, as Ms. David has done within the home environment.

From Mr. Brown’s description of the staff and their credentials, there is no indication that any of the staff have any particular expertise regarding children with a history of abuse.4 In addition, Mr. Brown explained that no individual therapy is offered at Walnut Hill. Instead, Walnut Hill provides much of its clinical support through its milieu and through groups which meet twice each week – for example, addressing anger management and interpersonal skills. Ms. David explained that Student is not yet ready to access and take advantage of group work.

I am not persuaded that Walnut Hill has the expertise or provides the requisite clinical or therapeutic services necessary to work successfully with Student and understand his needs so that it would be able to advise Williamstown how to address the behavioral issues which have interfered with his education.

The need for a therapeutic, rather than behavioral, approach . Ms. David explained in her testimony that not only has Student been traumatized by events in his early childhood but also by interventions of staff persons who have been responsible for him and who have sought to help him – for example, time out and restraint interventions. She further testified that she has found that when time-out techniques were used in the home, they were a “complete failure”, resulting in the escalation of his behavior. Dr. Haddad agreed, in his testimony and report, that traditional behavior modification techniques are not likely to be successful with Student, and instead he requires a more therapeutic approach.

Mr. Brown testified that the approach taken by staff at Walnut Hill to behavior difficulties is to follow a hierarchy of interventions – time-out within class, time-out outside of class, and restraint. He indicated that there are not any different strategies or approaches that are utilized with students who have a history of abuse.

When Hillcrest Educational Centers evaluated Student in 2001, the psychiatric evaluation report (authored by Dr. Yamini) included the following caution:
no further evaluation is needed at this point given that repeated evaluations, which mean placing this child in extremely unfamiliar settings, will further disrupt the routine of this child’s life and will traumatize him further.

Exhibits P-24, S-20.

The use of Walnut Hill’s behavioral approach (using time outs and restraints) with Student, combined with no demonstrated sophistication regarding the needs of students who have a history of abuse, raises the possibility that Student may be further traumatized during an eight week evaluation at Walnut Hill.

Need to review Student’s medication . In his testimony, Dr. Haddad appeared to place significant emphasis on the importance of reviewing Student’s medication as part of the extended evaluation, although Dr. Haddad later testified that he was not aware that, for the past four or five years, Student has been seen by a psychiatrist (Matthew Freedman) to oversee and manage his medications.

Mr. Brown testified that Walnut Hill has no psychiatrist on staff, with the result that any consultation by a psychiatrist would need to come from someone outside the program.

No one has testified as to the identity and qualifications of the psychiatrist who would conduct the review of Student’s medications, and how this review would relate to Student’s on-going medication care and monitoring by Dr. Freedman. Without consideration of these additional questions, it is not possible to determine the appropriateness of the proposed review of Student’s medications as part of the evaluation at Walnut Hill.

Appropriateness of an evaluation within a day school . Finally, I note that Dr. Haddad, as Williamstown’s consultant, testified that the extended evaluation should occur in a residential (rather than day) setting so that Student can be observed at different times of the day. He opined that limiting the observation and evaluation of Student to the hours of the school day would likely compromise the effectiveness of such an extended evaluation.5

Dr. Haddad’s testimony raises additional concerns regarding the usefulness of the proposed extended evaluation at Walnut Hill.

F. Transportation to and from Walnut Hill .

Of significant concern to Grandparent is the length of the drive from her home in Williamstown to Walnut Hill, and Student’s ability to tolerate safely this twice-daily trip.

Williamstown’s Director of Special Education (Dr. Singleton) testified that it takes approximately 45 to 50 minutes to drive between Williamstown and Walnut Hill. He further explained that Williamstown has obtained a former police car, with a barricade between the front and rear seats, in which Student could be transported between home and Walnut Hill. He noted that in addition to the driver, a second adult would ride in the front seat, with Student alone in the rear seat.

Ms. David’s unopposed testimony was that a 50-minute car ride each way to and from Walnut Hill may be dangerous to Student since when Student becomes frustrated and does not have a way to resolve these frustrations, his behavior can become extreme, including self-abusive behavior (for example, head-banging). Ms. David noted that she has ideas as to how, over a period of time, Student could learn to travel safely for 50 minutes.

I find that the length and means of proposed transportation to and from Walnut Hill raises significant safety concerns regarding the appropriateness of this proposed extended evaluation.

G. Ms. David as a Resource to Williamstown .

As already discussed, Williamstown has a substantial need to understand better Student’s behaviors, what causes them and how they can be addressed. Further understanding of Student must begin with the recognition that Student’s history of abuse and neglect significantly impacts who he is and how he responds to his environment. Williamstown, through its expert (Dr. Haddad) understands this. However, Williamstown has not taken the next step of actually working with Student in a manner which reflects and responds to his therapeutic needs as a survivor of abuse. Williamstown’s IEP includes no therapeutic services to address these issues, nor does Williamstown have anyone working with Student who has a demonstrated experience or expertise working with children with a history of abuse.

Ms. David appears to be the only person working with Student who has significant expertise and experience regarding children with a history of abuse. Moreover, Ms. David is the only person who has been successful in addressing his behavioral difficulties.6

As compared to Williamstown’s staff, Ms. David has learned more about Student’s behaviors, what triggers them and what can be done to reduce them. Ms. David has been able to find an explanation for Student’s individual acts of aggression, while Williamstown’s staff and consultant have not. As compared to Williamstown’s staff, Ms. David has developed a therapeutic relationship with Student. While the frequency and severity of Student’s aggressive behavior at school has increased significantly over the past four months, Ms. David has successfully worked to reduce the frequency and severity of Student’s aggressive behavior at home during this same period. Testimony of David, Haddad, Grandparent, Tallboy.

Ms. David has sought on a variety of occasions and in different ways to collaborate with Williamstown’s staff and to help them understand Student better and to improve their behavioral interventions. Williamstown has largely ignored Ms. David as a resource, preferring to take the position that her successful work is largely irrelevant to the school because of the different environments of home and school. Testimony of David, Haddad, Tallboy, Singleton.

Undoubtedly it is true that the differences between the home and school environments are significant. However, it is not disputed that for Student’s educational program to be effective, there must be a high degree of consistency between the approaches and techniques used at home and in school. Testimony of David, Haddad. And, as Ms. David persuasively explained in her testimony, many of the challenges (for example, imposing demands and expectations upon Student) are common to both environments. I believe that with Ms. David’s assistance, Williamstown’s understanding of Student and his behavioral needs could be significantly increased.

I find that Williamstown’s need for additional information regarding Student can be satisfied, in part, through greater collaboration with Ms. David.

H. Conclusion .

Williamstown bears the burden of demonstrating that its proposed eight-week evaluation at Walnut Hill is reasonably likely to provide the additional information which Williamstown needs in order to determine Student’s educational services and where those services should be provided. In summary, Williamstown has not met this burden for the following reasons:

1. The evidence is not persuasive that Walnut Hill has the requisite expertise and services to provide Williamstown with the information which it needs. The evidence is not persuasive that Walnut Hill will respond to Student’s maladaptive behavior in a manner which would not re-traumatize him.

2. The undisputed evidence indicated a significant safety concern with respect to transportation to and from Walnut Hill.

3. Williamstown has not, in a meaningful way, utilized as a resource the professional (Ms. David) most knowledgeable about Student. Williamstown’s need for additional information regarding Student can be satisfied, in part, through greater collaboration with Ms. David.

4. The testimony of the Williamstown consultant (Dr. Haddad) and Student’s special education teacher (Ms. Tallboy) indicates that Williamstown may not have the capacity to educate Student appropriately within the public school system, and that Student will need to be placed within an out-of-district, therapeutic day school. Ms. David supports this placement. (The testimony of Dr. Haddad, Ms. Tallboy and Ms. David on this issue is summarized in subpart C of the Facts section of this Ruling.) The only comprehensive evaluation of Student (by the Hillcrest Education Centers) supports a therapeutic placement. Exhibits P-24, S-20. It therefore seems likely that Williamstown will propose an out-of-district, therapeutic placement for the 2004-2005 school year. This placement, presumably, will include staff with sufficient experience and expertise to understand and work effectively with Student’s behavioral difficulties.

For these reasons, I find that it is not necessary that Student be evaluated at an eight-week extended evaluation at Walnut Hill, as proposed by Williamstown. I further find that this proposed evaluation may be harmful to Student.

Williamstown’s Motion for Order for Extended Evaluation is therefore DENIED.

By the Hearing Officer,

_________________

William Crane

Dated: June 16, 2004

APPENDIX A

COMMONWEALTH OF MASSACHUSETTS

BUREAU OF SPECIAL EDUCATION APPEALS

In Re: Williamstown Public Schools BSEA # 04-4917

ABBREVIATED RULING ON MOTION FOR EXTENDED EVALUATION

In order to provide the parties with a timely resolution of their dispute regarding an extended evaluation for Student, this Abbreviated Ruling is issued in advance of the full Ruling. It is anticipated that the full Ruling (which will provide more detailed explanation for my denial of the School District’s Motion) will be issued next week.

On May 27, 2004, Williamstown Public Schools (Williamstown) filed a Motion for Order for Extended Evaluation . Through its Motion , Williamstown seeks an eight week extended evaluation of Student at the Walnut Hill at Mohawk program (Walnut Hill).

Williamstown takes the position that it does not currently have sufficient information to develop an IEP that would satisfy its responsibilities to provide an appropriate education for Student, nor does it have sufficient information to complete a manifestation determination. Williamstown argues that through an extended evaluation, it would be able to obtain assessments and information which are essential to its development of an appropriate educational program and placement for Student.

Grandparent (who is the legal guardian) opposes the Motion, taking the position that such an evaluation is not needed because Williamstown already has sufficient evaluative information regarding Student. Grandparent also raises the concern that the proposed extended evaluation (in particular, transportation to and from Walnut Hill) may be harmful to Student.

Williamstown’s request for an extended evaluation is made pursuant to 603 CMR 28.05(2)(b). I have authority to order an evaluation “when necessary to determine the appropriate special education for the student” pursuant to 603 CMR 28.08(5)(c).

Each party presented credible testimony, documentary evidence and argument during the evidentiary Hearing on June 8, 2004. However, I find the testimony of Efrat David to be particularly credible. I believe she is the person who best understands Student and his behaviors. I therefore rely, in particular, on Ms. David’s testimony in seeking to understand Student’s needs and whether Williamstown’s proposed extended evaluation should be ordered.

I find that it is not necessary that Student be evaluated at an eight-week extended evaluation at Walnut Hill, as proposed by Williamstown. I further find that this proposed evaluation may be harmful to Student. For these reasons, Williamstown’s Motion for Order for Extended Evaluation is DENIED.

By the Hearing Officer,

_________________

William Crane

Dated: June 10, 2004


1

Not at issue is whether Student should be placed in an interim alternative educational placement . When Williamstown filed its Motion , Grandparent’s attorney filed a response which assumed that the Motion was a request for an interim alternative educational placement pursuant to 20 USC 1415(k)(2) and (3), and 34 CFR 300.521 and 300.522. However, Williamstown’s attorney filed a further response with the Hearing Officer, indicating Williamstown’s intent to proceed only under the state regulations allowing for an extended evaluation, and that Williamstown was not requesting an interim alternative educational placement.


2

603 CMR 28.08(5)(c). See also BSEA Hearing Rule 9B12.


3

Williamstown also takes the position that it requires an extended evaluation in order to have sufficient information to complete the manifestation determination. I disagree. I am satisfied by the testimony of Dr. Haddad (although his testimony on this issue fluctuated some when he was asked essentially the same questions multiple times) and Ms. David that the IEP Team (with the assistance of Dr. Haddad and Ms. David) is able to determine (1) whether Student’s disability precludes him from having the capacity to know that engaging in the behavior was wrong, (2) whether Student’s disability impairs his awareness and understanding of the impact and consequences of his behavior, (3) whether Student’s disability impairs his behavior controls, (4) whether Student’s behavioral repertoire demonstrates a pattern of impulsiveness, and (5) whether there are discrepancies between Student’s behavior in the home or community setting and his behavior at school. Exhibit S-11.


4

I also note that the literature from the program, in listing the fourteen “populations served”, does not include students with PTSD or students with a history of abuse. Exhibit S-4.


5

Williamstown apparently considered, but then rejected, the possibility of seeking to do a residential extended evaluation. Grandparent has clearly indicated her strong opposition to any residential placement as not being in the interests of Student.


6

The services of Ms. David and those working with her have been provided and funded separately and are not reflected within the IEP.


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