COMMONWEALTH OF MASSACHUSETTS
BUREAU OF SPECIAL EDUCATION APPEALS
In Re: Maynard Public Schools
BSEA# 10-6645
DECISION
This decision 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 c. 71B), the state Administrative Procedure Act (MGL c. 30A) and the regulations promulgated under these statutes.
A hearing was held on May 21, 2010 in Maynard, MA before Ann F. Scannell, Hearing Officer. Those present for all or part of the hearing were:
Jill Greene Director of Student Services, Maynard Public Schools
Jonathan Schenker Special Education Teacher, Maynard Public Schools
Lynn Von Thaden Behavior Support Specialist, Maynard Public Schools
Russell Maguire, Ph.D. Behavior Specialist, Maynard Public Schools
Kate Markowitz Early Childhood Coordinator
Donna Gamble Special Education Coordinator, Maynard Public Schools
Tracey Weisner Physical Therapist, Maynard Public Schools
Carolyn Lyons Attorney for Maynard Public Schools
The official record of the hearing consists of documents submitted by Maynard Public Schools and marked as Exhibits S-1 through S-59 and approximately one day of oral testimony. Oral closing arguments were heard following the close of testimony on May 21, 2010 and the record closed on that date.1
INTRODUCTION
Sam2 is an 8 year old student in the first grade at the Green Meadow Elementary School in Maynard. He lives with his father, stepmother and two younger brothers in Maynard. Sam’s past medical history is complicated. There is a history of seizures, cranial surgery at three months, reactive airway disease and allegations of abuse and neglect. Sam also spent significant time in and out of homeless shelters and foster homes. (S-8)
In previous school placements, Sam had a difficult time playing appropriately with peers. It was reported that Sam would often become angry and aggressive. A previous educational assessment noted that Sam presented as guarded and subdued which raised a question of whether Sam was suffering from depression and/or anxiety. (S-10)
Sam was initially evaluated for special education services in 2006. On May 10, 2006, Maynard conducted an educational evaluation. Sam scored within the average range. On September 21, 2006,
Sam was found to be ineligible for special education services. Although his preschool teachers reported difficulties with behavior, play and social skills, the parents would not allow the school to conduct a psychological evaluation. They reported that Sam was to be evaluated by an outside provider. (S-48 and 49 and testimony of Greene)
Sam subsequently underwent a psychological evaluation in the spring of 2007. The evaluation was conducted by Dr. Eckert on behalf of Maynard. As a result of the evaluation, Sam was found eligible for special education services. He was found eligible on the basis of an emotional disability. An IEP was developed at that time. Sam’s initial IEP provided a full inclusion program with a pull-out one time per week with the adjustment counselor. Subsequent IEPs included additional services. In September 2009, however, Sam’s IEP called for placement in a substantially separate classroom. Sam was placed in the ISTeP program (Intensive Structured Teaching Program) located at the Green Meadow Elementary School in Maynard. (S-4, 5, 6, 7 and 13 and testimony of Greene)
Sam’s most recent IEP, dated December 23, 2009 to December 22, 2010, calls for continued placement in the ISTep program. This program services children in grades 1 to 3 whose acquisition of language, social skills and academics has been impacted by two or more of the following disorders: anxiety disorder, attention deficit disorder, communication disorder, neurologically-based learning disability, pervasive developmental disorder or social pragmatic language disability. Sam’s proposed IEP provides for two pull-out sessions with the adjustment counselor for thirty minutes a session and one, thirty minute pull-out session of physical therapy. A revised Behavior Support Plan is also part of the proposed IEP. (S-1, 2 and 57 and testimony of Greene, Gamble, Maguire and Schenker)
For the past several months, Maynard has met with the parents on numerous occasions to discuss the 2009-2010 IEP and accompanying Behavior Support Plan. The parents have repeatedly changed their position on the proposed IEP and Behavior Support Plan. The parents rejected services, accepted services, partially rejected services, withdrew Sam from special education services and requested re-enrollment in special education. The parents also initially provided consent for Maynard to conduct Sam’s three year reevaluation but subsequently withdrew this consent. (S-1, 2, 29, 30, 31, 32, 35, 36, 37, 38 and 39 and testimony of Greene and Gamble)
On April 15, 2010, Maynard filed a Hearing Request with the Bureau of Special Education Appeals. Maynard is seeking an order from the Bureau of Special Education Appeals that Sam’s IEP dated December 23, 2009 to December 22, 2010, provides Sam with a free appropriate public education (“FAPE”). Maynard is also seeking an order for substituted consent to conduct Sam’s three year reevaluation. Finally, Maynard is seeking an order to override the parents’ refusal to provide consent for projective testing of Sam.
The parents did not respond to Maynard’s Hearing Request. They did send two letters to Maynard’s counsel purportedly accepting Sam’s IEP. The parents also participated in two conference calls prior to the Hearing. The Hearing was initially scheduled for May 5, 2010 but postponed at the parents’ request. The Hearing was rescheduled to May 21, 2010. (S-29)
The parents did not appear at the Hearing on May 21, 2010. Counsel for Maynard stated that the parents informed Maynard that they would not be participating in the Hearing. Before the Hearing began the Hearing Officer telephoned the parents and was advised by the parents that the Hearing Officer “had the wrong number.” The Hearing Officer proceeded with the Hearing at that time.
On May 26, 2010, the Hearing Officer sent a copy of the transcript to the parents and provided notice to the parents that they could file a written closing argument with the Hearing Officer no later than June 4, 2010. The parents did not respond.3
It is the school’s position that the proposed IEP, dated December 23, 2009 to December 22, 2010, provides a free, appropriate public education to Sam. It is the school’s further position that it is appropriate to conduct a three year reevaluation of Sam at this time so the Hearing Officer should override the parents’ refusal to consent to the three year reevaluation. The Hearing Officer should also override the parents’ refusal to consent to projective testing of Sam.
ISSUES
The issues to be decided in this matter are the following:
1. Does the December 23, 2009 to December 22, 2010 provide a FAPE to Sam in the least restrictive environment?
2. Is it necessary to obtain substituted consent to conduct a three year reevaluation of Sam in order to provide a FAPE to Sam?
3. Should the Hearing Officer override the parents’ refusal to consent to projective testing in order to provide a FAPE to Sam?
FACTS
Sam began attending the Maynard Public Schools when he entered Maynard’s preschool program in the spring of 2007. Prior to entering preschool, Sam underwent a psychological evaluation with Lou Eckart, Ph.D. due to concerns about Sam’s behavior. Sam was having difficulty following directions, playing with peers and staying focused. In addition, Sam could be very emotional and was also aggressive at times. (S-13)
Sam’s father reported that Sam’s mother suffered from bipolar disorder and had a drinking problem. According to Sam’s father, Sam’s mother had locked Sam in a closet to punish him and fed him poorly on junk food. For the first two years of Sam’s life, he lived with both of his parents. Sam then lived alone with his mother for four months in homeless shelters. Sam was removed from his mother’s care and placed in a foster home for approximately one year. Sam’s father obtained custody of Sam in late 2005. (S-13)
Sam’s father described Sam’s behavior at home as active and impulsive. Sam was easily frustrated and could fly into a rage when he did not get his way. Sam was happy one minute, then angry the next. According to Sam’s father, Sam appeared very fearful when he was corrected or disciplined. Sam would state that he was “not a good boy” and worried that “Daddy will not love me.” (S-13)
A report from Sam’s previous preschool noted that he had trouble making friends and playing appropriately with peers at school. Some of the other children avoided Sam because of his behavior. Sam was angry and aggressive on numerous occasions. He was noted to bite teachers and peers, scratch other children and swear and kick at teachers. Sam had difficulty sitting still, listening and following directions. He tried to run out of the school during one incident. (S-13)
In her 2007 evaluation, Dr. Eckart noted that Sam’s mood seemed subdued compared to other children his age. Sam was easily distracted by noise and would startle and ask what made the particular noise. Dr. Eckart felt that, at times, Sam’s behavior seemed to be more related to hypervigilance than to distractability. (S-13)
Sam’s performance on formal cognitive testing suggested that he was not demonstrating significant developmental delays. Sam’s skills in some areas, however, were not as strong as would be expected for his age. Sam’s full scale IQ score fell just below the average range. (S-13)
The results of Child Behavior Checklist completed by Sam’s father, showed that Sam was demonstrating internalizing symptoms of emotional distress which could suggest the presence of a mood disorder or an anxiety disorder. Sam also exhibited externalizing behaviors which could suggest the presence of Attention Deficit Hyperactivity Disorder (ADHD) and Oppositional Defiant Disorder (ODD) as well as anxiety. Dr. Eckart felt that Sam’s behaviors during the evaluation were more consistent with a mood disorder or an anxiety disorder, than ADHD or ODD. Sam’s father noted that there was a family history of mood disorders. (S-13)
Dr. Eckart stressed the need for a structured program for Sam designed for children who have similar emotional and behavioral needs or frequent consultation to his classroom teacher by someone trained to provide behavioral recommendations. She also noted the need for a formal behavior program that would allow Sam to earn small rewards for task completion. (S-13)
On May 15, 2007, Sam underwent an independent evaluation at Children’s Hospital at the parents’ expense. It was noted that, at the time of the evaluation, Sam continued to have difficulties with absence seizures and was being followed by Dr. Fayad at Children’s Hospital. Sam was taking Depakote twice a day to control these seizures. (S-12)
As part of the independent evaluation, Sam was administered the Weschler Individual Achievement Test (WIAT-II). This academic testing showed that Sam had underdeveloped basic reading skills for his age. His performance on the math subtests, however, was much better developed. Sam scored solidly within the average range. Sam had a significant discrepancy between his academic achievement and cognitive abilities. Consequently, the examiner opined that Sam met the diagnostic criteria for a Learning Disorder NOS. (S-12)
The examiner noted that, psychologically, Sam exhibits behavioral and emotional regulation difficulties, anxieties and weak frustration tolerance. He also exhibits a number of depressive and anxiety symptoms that significantly impact his functioning and require continued therapeutic supports. Diagnostically, the examiner reported that Sam met the criteria for a mood disorder NOS. The examiner deferred a diagnosis of ADHD. (S-12)
Recommendations from the Children’s Hospital team included individual therapy for Sam, an academic environment with ample opportunity for individual support to reduce stressors and intensive and consistently implemented behavioral supports. It was also recommended that a token system be used with Sam to promote positive behaviors and involve Sam in monitoring his own progress. The examiners discussed the importance of implementation of a behavior plan across settings. (S-12)
Sam was found eligible for special education services on April 6, 2007, following the psychological evaluation by Dr. Eckart. The Children’s Hospital evaluation approximately two months later continued to support special education services for Sam. An initial IEP was developed in April 2007. The goals in Sam’s initial IEP focused on classroom behavior, social pragmatics and social skills. Sam received special education from the special education teacher two times per week for thirty minutes. He also had one thirty minute session with the adjustment counselor once a week. (S-7 and testimony of Greene)
Although Sam made progress in preschool, his progress was slow. The TEAM decided that Sam would benefit from another preschool year. He needed more time to work on his academic, social and behavioral needs in order to meet his IEP goals and objectives. Accordingly, Sam entered the full day preschool program in September of 2007. (S-6 and testimony of Greene)
Sam underwent additional evaluations by Maynard in November and December of 2007, including a speech and language assessment, a physical therapy assessment, achievement tests and an occupational therapy assessment. A TEAM meeting was held in January 2008. An IEP was developed at that time. The IEP was dated January 4, 2008 to January 3, 2009. This IEP included direct speech and language services and physical therapy services. It also included a Behavior Support Plan. The plan was developed to decrease non-compliant behaviors, verbal protests and inappropriate behavior. A token system was developed to provide positive reinforcement. (S-5 and 19 and testimony of Greene and Maguire)
On December 23, 2008, the TEAM conducted an annual IEP review meeting. Academically, it was reported that Sam was making progress. Sam understood basic literacy skills and his writing skills were beginning to emerge. The teacher noted that there had been a decrease in many of Sam’s negative behaviors but his noncompliance was still impacting his ability to effectively access the curriculum and demonstrate his true abilities. Sam’s social/emotional skills had improved and Sam was using coping skills when he was angry or upset. Sam’s behavior support plan was discussed. The TEAM agreed that it should remain in place. They further agreed that a checklist should be added to the plan to increase the plan’s effectiveness. (S-4)
As a result of the December 2008 TEAM meeting, a new IEP was proposed with effective dates of December 23, 2008 to December 22, 2009. Sam would be serviced in a partial inclusion program and be supported by a paraprofessional. He would also receive pull-out social skills services, pull-out English Language Arts instruction and pull-out physical therapy services. The parents accepted the IEP except for the physical therapy services. (S-4 and testimony of Greene and Schenker)
In March of 2009, a baseline behavior support plan for Sam was developed by Dr. Maguire. Dr Maguire is the behavior specialist for Maynard Public Schools. Sam was having increased difficulty in the classroom completing tasks and complying with teacher directives. The plan sought to decrease the frequency of Sam’s verbal outbursts, leaving supervised areas, property destruction, urinating and aggression. Sam’s aggressive acts included biting, hitting, kicking, head butting, and slamming his body into others. (S-17 and testimony of Maguire)
In June, 2009, Dr. Maguire conducted a Functional Behavioral Assessment (“FBA”). The purpose of the FBA was to determine the reasons for Sam’s challenging behaviors and make recommendations for a Behavior Support Plan. Sam’s challenging behaviors included inappropriate verbal behavior, non-compliance, leaving a supervised area, aggression, disruption and property destruction. Using the Motivational Assessment Scale, Dr. Maguire concluded that Sam’s challenging behaviors were primarily motivated by escape and secondarily by a desire to access tangibles and attention. (S-16 and testimony of Maguire)
The TEAM met on June 8, 2009 to review Sam’s progress and determine placement for the 2009-2010 school year. Sam’s classroom teacher noted that there had been an increase in the number of timeouts and the duration of timeouts Sam had undergone over the past several weeks. Sam was also experiencing some difficulty with classroom participation. Sam’s social interaction in the small group setting was more appropriate. He had difficulty, however, generalizing these skills to the classroom. (S-3)
The TEAM agreed that Sam needed a small structured environment with reduced distractions and clear behavioral and performance expectations. A substantially separate classroom was proposed. Sam would follow the first grade curriculum and a behavioral support plan would continue to be implemented. The Behavior Support Plan would be finalized in the fall after the results of the FBA could be reviewed. (S-3and testimony of Maguire and Gamble)
In September 2009, Sam was placed in a substantially separate classroom. Although the parent rejected the physical therapy services and the social/emotional goals called for in the September 2009 to December 2009 IEP, the parent did accept the placement in a substantially separate classroom. (S-17 and S-3 and testimony of Greene and Gamble)
A TEAM meeting was held on December 15, 2009 and an IEP was proposed as a result of this meeting. The IEP was identical to the September 2009 to December 2009 IEP but instead of meeting with the adjustment counselor five days a week for 10 minutes, the new IEP called for Sam to meet with the adjustment counselor two times per week for thirty minutes. The parents rejected the new IEP on January 11, 2010 and refused the placement. (S-1 and 2 and testimony of Greene and Gamble)
In addition to the new proposed IEP, the TEAM agreed to conduct Sam’s three year evaluation early so that these evaluations would coincide with the neuropsychological evaluation that was currently being conducted by Dr. Stevens on behalf of Maynard. The proposed evaluation consent form requested an occupational therapy assessment, a speech and language assessment, a physical therapy assessment, an educational achievement assessment, an educational assessment, a health assessment, a home assessment and an observation of Sam. Maynard had last conducted an evaluation of Sam in November and December of 2007. The parents initially rejected the proposed evaluation on January 11, 2010. They subsequently accepted the proposed evaluation in full on January 26, 2010 at the TEAM meeting. (S-1, 2, 8, 9, 10 and 11 and testimony of Greene and Gamble)
On January 26, 2010, the TEAM reconvened to discuss the rejected IEP. At the meeting, the parents partially accepted the IEP and also accepted the proposed placement. The parents did not agree that Sam needed physical therapy services so rejected that portion of the IEP. (S-1, 2 and 56 and testimony of Gamble)
On January 27, 2010, Maynard received a letter from the parents dated January 26, 2010. The letter expressed the parents’ discouragement with the TEAM meeting on January 26, 2010. The parents noted that they felt that they were forced to sign the IEP at the meeting. The parents stated that they were sending a letter to Jill Greene, the SPED director, “refusing” the IEP. (S-38 and testimony of Gamble)
On February 1, 2010, Maynard received the aforementioned letter from the parents. The parents’ letter dated January 29, 2010 stated that the parents were “refusing the IEP all together.” Maynard received a second letter from the parents on February 2, 2010. This letter, dated February 1, 2010, stated that the parents were accepting Sam’s IEP except for physical therapy services. The parents also “demanded” a new IEP meeting to be held at the end of February. On February 25, 2010, however, Maynard received a third letter from the parents. Again, the parents demanded that Sam be “taken off IEP ASAP”. (S-35, 36 and 37 and testimony of Greene)
After meeting with the school and also attending a mediation session, the parents withdrew Sam from special education altogether. In a fourth letter dated April 6, 2010, the parents stated that as of April 6, 2010, Sam will not have a behavior plan or an IEP. This letter triggered Maynard’s notice pursuant to the IDEA. Maynard informed the parents that Sam would now be considered to be a regular education student. (S-31 and 32 and testimony of Greene)
After several more discussions with the school, the parents informed Maynard by letter dated May 4, 2010 that the parents were not accepting the behavior plan and IEP plan. Yet, three days later, on May 7, 2010, the parents informed Maynard’s counsel and their hearing officer that the parents were accepting Sam’s IEP except for the physical therapy services. Six days later the parents informed the same parties that as of June 17, 2010, Sam will not be in Green Meadow School but that the family would be moving to another district or Sam would be home schooled. The letter, dated May 13, 2010, further states that “whatever plan you put into place will end 06/16/10”. (S-29 and testimony of Greene)
DISCUSSION
Sam is an individual with a disability falling within the purview of the Individuals with Disabilities Education Act (IDEA), 20 USC 1400 et seq . and the state special education statute, M.G.L. c. 71B. Accordingly, Sam is entitled to a free, appropriate public education (FAPE). Sam’s eligibility and entitlement to a FAPE are not in dispute.
December 23, 2009 to December 22, 2010 IEP
The first issue before me is whether the 2009 to 2010 IEP proposed for Sam provides him with a free, appropriate public education in the least restrictive environment. Before I reach this issue, it is necessary to discuss the procedural posture of this case.
When the 2009-2010 IEP was proposed Sam was being serviced in the ISTeP program which is a substantially separate classroom within the Green Meadow School. The prior IEP called for placement in the ISTeP program and the parents had consented to this placement. The parents had also accepted the IEP except for the provision of physical therapy services.
Sam began attending the ISTeP program in September of 2009. The testimony from Mr. Schenker, The ISTeP special education teacher, was that Sam was making progress in the program, that he had friends in the program and his negative behaviors over the first few months of school had decreased.4 At the TEAM meeting in December, a new IEP was proposed, calling for the continuation of Sam in the ISTeP program. The services in the new IEP were essentially the same.5
After the 2009-2010 IEP was proposed, the parents spent the next few months alternately rejecting, accepting and partially accepting the proposed IEP and placement. Their actions culminated in requesting that the District withdraw Sam from all special education services. The parents’ letter dated April 6, 2010 stated, “He is to be taken out of special education class and put into a regular classroom.”
Maynard complied with the parents’ request. Yet, one month later, the parents again wrote to Maynard. Their May 7, 2010 letter states that Sam “can attend Special Education Class”. It further states that the parents are accepting Sam’s IEP except for physical therapy services and the parents “have never been against Sam’s IEP”.
In December 2008, the IDEA’s regulations relating to revocation of parental consent were amended. The amendment provides in relevant part,
“If at any time subsequent to the initial provision of special education and related services, the parent of a child revokes consent in writing for the continued provision of special education and related services, the public agency, (ii) May not use the procedures in subpart E of this part (including ….the due process procedures under Section 300.507 through 300.516) in order to obtain agreement or a ruling that the services may be provided to the child”.6
The commentary to the regulations explains that a parent may, after revoking consent for services, later request that his or her child be re-enrolled in special education. The commentary further explains that if a parent requests that the child be re-enrolled, it is not always necessary to conduct a “new” initial evaluation. The TEAM may review existing data and agree that a “new” initial evaluation is not necessary. The child can then begin receiving special education services again.7
In this case, If Sam’s parents had not requested that Sam be re-enrolled in special education, I would have no jurisdiction, pursuant to the amended IDEA regulations, to decide whether the 2009-2010 IEP provides a FAPE for Sam. Since, however, the parents requested in writing that Sam be re-enrolled in special education, this matter is properly before me and can be adjudicated.
Having addressed this procedural and jurisdictional issue and found this issue to be properly before me, I now address whether the proposed 2009-2010 IEP provides Sam with a free, appropriate public education in the least restrictive environment. As the moving party Maynard has the burden of persuasion on this issue.8
The overwhelming and undisputed evidence shows that the 2009-2010 IEP proposed by Maynard provides a FAPE to Sam in the least restrictive environment. Mr. Schenker, Sam’s classroom teacher testified that Sam made progress during the year in the ISTeP program. He noted that Sam could access the curriculum because his negative behavior had decreased. Mr. Schenker characterized Sam as a bright individual who could easily engage when his negative behavior was managed. He noted that Sam had friends in the classroom. As a matter of fact, when Sam left the classroom when his parents revoked consent for special education services, Mr. Schenker testified that the students were asking when Sam was coming back and asking to see him. Overall, Mr. Schenker stated that it was a positive experience for Sam. He had begun to open up more and deal with his emotions in a more appropriate manner. This, in turn, allowed Sam to better access the curriculum.
The evidence from Maynard also revealed that when Sam had been in an inclusion Kindergarten last year, his behavior worsened over the course of the year and he was far less able to access the curriculum. Further, while Sam has been in a regular education classroom over the past month9 , personnel had to be added to the classroom to ensure that Sam and his classmates were safe. Dr. Maguire, Ms. Greene, Mr. Schenker and Ms. Gamble all expressed safety concerns with having Sam in the regular education classroom even though Sam was only attending 2 ½ hours a day. They also testified that no academic demands were being placed on Sam and he was not accessing the curriculum.
It was Dr. Maguire’s opinion that if Sam spent a good solid year in the ISTeP program with Mr. Schenker, then by the end of the year Sam would be in one, maybe two inclusion classes with support and doing well. Although the ISTeP program is a substantially separate classroom, Dr. Maguire testified that students may move in and out of the classroom during the day to attend specials or inclusion classes as appropriate.
The evidence is undisputed that Sam has significant emotional and behavioral needs that must be appropriately addressed so he can access the curriculum. The ISTeP program has seven students including Sam. Four adults, including a special education teacher, two ABA specialists and a paraprofessional are present in the classroom. Additional supports available to the classroom include the behavior specialist (Dr. Maguire), the assistant behavior specialist, the special education coordinator (Ms. Gamble), the autism support specialist and various therapy providers. The ISTeP program clearly fulfills Sam’s needs. By all accounts, Sam has made progress in the program and would continue to do so.
Maynard has provided credible, persuasive and undisputed evidence that the 2009-2010 proposed IEP provides Sam with a free, appropriate public education in the least restrictive environment.
Three Year Reevaluation
The second issue to be decided in this case is whether it is necessary for Maynard to obtain substituted consent to conduct a three year reevaluation of Sam in order to provide him with a FAPE. Since Maynard is the party seeking relief, it has the burden of persuasion.10
Massachusetts special education regulations set forth the requirements for conducting three year reevaluations. The regulations provide in relevant part,
“The school district shall review the IEPs and the progress of each eligible student at least annually. Additionally, every three years or sooner if necessary, the school district shall, with parental consent, conduct a full three-year reevaluation consistent with the requirements of federal law.”11
Federal special education regulations further provide,
“Parental consent for reevaluations. (1) Subject to paragraph (c)(2) of this section, each public agency,
1. Must obtain informed parental consent, in accordance with section 300.300(a)(1), prior to conducting any reevaluation of a child with a disability.
2. If the parent refuses to consent to the reevaluation, the public agency may but is not required to, pursue the evaluation by using the consent override procedures described in paragraph (a)(3) of this section [referring to the due process procedures].12
Sam was initially evaluated in May of 2006 by Erin McDonald, M.Ed., a special educator with Maynard Public Schools. Sam was evaluated at the request of his father to determine his eligibility for special education services. Ms. McDonald observed Sam is his private preschool program and conducted the Revised Brigance Diagnostic Inventory of Early Development. Sam was 4 years old at the time of this evaluation.13
Sam underwent a second initial evaluation in March of 2007 to determine eligibility for special education services. Dr. Eckart conducted a psychological evaluation which also included cognitive testing. Sam was five years old at the time of the evaluation. As a result of this evaluation Sam was found eligible for special education services on the basis of an emotional disability.
In November and December of 2007, Sam underwent a speech and language assessment, a physical therapy assessment, an occupational therapy assessment and a brief educational assessment. These evaluations were conducted as a result of a parent/teacher meeting and an outside evaluation that had been conducted by Children’s Hospital. Concerns were expressed about Sam’s academics, gross motor skills, fine motor skills and language skills.
On January 7, 2010, Maynard requested that the parents consent to a three year reevaluation of Sam. At the outset, the parents would not provide consent to the three year reevaluation. They subsequently consented to the reevaluation but most recently denied consent. Maynard proposed to conduct an occupational therapy assessment, a speech and language therapy assessment, a physical therapy assessment, educational achievement testing, an educational assessment, an observation of Sam, a health assessment and a home assessment.
Ms. Jill Green, Director of Student Services for Maynard Public Schools, testified that at a minimum, Maynard needed to conduct a physical therapy assessment, educational achievement testing, an observation of Sam and health assessment.
The law is clear that a school district is required to conduct a reevaluation of a student every three years. It is not as clear, in this case, as to whether three years have passed since Sam’s last evaluation. As to Maynard’s request to conduct an occupational therapy evaluation, a physical therapy evaluation, a speech and language evaluation, educational achievement testing and an observation of Sam, three years have not passed. So, based solely on the three year threshold, Maynard would not be required to conduct the aforementioned evaluations and assessments until November or December of 2010.
The special education regulations also allow a school district to conduct a three year reevaluation sooner than the expiration of three years, if it “is necessary” to conduct the three year reevaluation sooner. Since January 2010, there have been many disruptions to Sam’s program because of the parents’ inconsistency in allowing certain services; namely, the implementation of the Behavior Support Plan and physical therapy services. Further, the testimony revealed that Sam has not been receiving special education services since April 30, 2010 due to the parents’ withdrawal of consent for special education services.14 More importantly, the evidence is undisputed that Sam requires the special education services outlined in his 2009 to 2010 IEP, including the Behavior Support Plan, to access the curriculum.
I, therefore, find that many of the assessments requested by Maynard in the three year reevaluation proposal are necessary to determine Sam’s current functioning so that the proper special education services can be provided to him. Pursuant to Massachusetts special education regulations, these particular assessments should be conducted sooner than the expiration of three years because they are necessary to determine the services Sam needs to effectively access the curriculum.
Ms. Weisner, the physical therapist, testified that she last evaluated Sam in November and December of 2007. At that time, Ms. Weisner recommended that Sam receive direct physical therapy services to assist him with his gross motor control issues. She further testified that Sam did in fact receive direct physical therapy services until March of 2009. At that time, Sam’s father requested that physical therapy services no longer be provided to Sam. Ms. Weisner testified that Sam made progress during the time he underwent physical therapy. He had not, however, attained all of his goals so it was recommended that physical therapy services continue. At no time, did Ms. Weisner, or any other physical therapist from Maynard, reevaluate Sam and make a determination that services were no longer necessary. Based on the testimony, it is readily apparent that it is necessary to conduct a physical therapy assessment of Sam at this time to determine his current level of functioning and whether physical therapy services are indicated.
The testimony also supports Maynard’s position that Sam undergo an educational assessment at this time. All of the Maynard staff testified that Sam is unable to access the curriculum without the proposed special education supports. Ms. Gamble, the Special Education Coordinator for Maynard, testified that she observed Sam while he has been in the regular education classroom since April 30, 2010. There are four adults present in the classroom and one is a paraprofessional assigned to a few students, including Sam. Ms. Gamble testified, however, that the paraprofessional is spending 85% to 90% of her time solely working with Sam. It is unusual to have four adult staff in a regular education classroom with 18-19 students. Ms. Gamble and Ms. Greene testified that this structure was purposely put into place to manage Sam. Sam has only been attending school during the morning for 2 ½ hours. Ms. Gamble testified that there have been very few academic demands placed on Sam. The staff is working extremely diligently to manage Sam’s behavior.
There is no doubt, based on the testimony, that an educational assessment is necessary at this time to determine Sam’s current level of functioning. It is important to obtain academic achievement data because Sam’s academic progress has been inconsistent over the years and Children’s Hospital raised an issue of a learning disability. The testimony also revealed that Sam has weaknesses in certain academic areas that may have to be addressed with the addition of specific special education services. I find, therefore, that educational achievement testing, an educational assessment, a speech and language evaluation and an observation of Sam are necessary at this time.
I am not convinced, however, that an occupational therapy evaluation, health assessment and home assessment are necessary at this time. There has been no testimony that Sam has been experiencing any fine motor control problems or other problems that would require occupational therapy services. When Sam was evaluated by the Maynard occupational therapist in December of 2007, she did not recommend direct occupational therapy services. There has also been no testimony whatsoever supporting the need to conduct a health assessment. Nor has there been any convincing testimony that it is necessary to conduct a home assessment at this time. The evidence shows that Maynard has been frustrated with the parents for not allowing Maynard to speak with any of Sam’s outside providers except for Sam’s pediatrician. A home assessment would not alleviate this frustration. Further, many of the documents in evidence provide family history and information about Sam’s home situation. These documents also reveal the parents’ trust issues with the school. Accordingly, I do not find that conducting a home assessment at this time is critical to developing the appropriate program for Sam so he can access the curriculum and receive a FAPE.
Projective Testing
The third issue to be decided is whether it is necessary to override the parents’ refusal to consent to projective testing by Dr. Stevens. Again, Maynard has the burden of persuasion on this issue.
Maynard’s evaluation consent form did not request that Maynard be allowed to conduct a psychological assessment of Sam. According to testimony from Ms. Greene and Ms. Gamble, the parents had previously agreed to have Dr. Stevens conduct a psychological assessment of Sam. Ms. Greene testified that the cognitive portion of the assessment was completed by Dr. Stevens this past summer. Her evaluation is not complete, however, because she wanted to conduct projective testing and the parents would not consent. Maynard is requesting that the Hearing Officer override parents’ refusal to consent to projective testing and provide substituted consent to the projective testing.
Projective testing is not commonly conducted when a student undergoes a psychological assessment as part of his/her participation in special education. Although, Maynard staff testified that they felt that projective testing was necessary because the parent has not fully cooperated in providing family history and has not allowed Maynard to speak with any of Sam’s outside providers, I do not agree. None of the Maynard staff has any experience or expertise in conducting projective testing. None of the staff testified about what the projective testing would entail.
Dr. Maguire, who is Maynard’s behavioral specialist and is a psychologist, testified that projective testing is necessary because the district “may be” looking at emotional issues with Sam that have not been identified and the parents have not given the District permission to speak with any of Sam’s outside providers. Dr. Maguire further testified that he does not conduct projective testing. He also testified that the TEAM could probably continue to provide FAPE to Sam currently without the projective testing. Although I found Dr. Maguire to be a very credible witness, particularly with regard to Sam’s behavior and the Behavior Support Plan, I did not find his testimony about the need for projective testing to be persuasive. Dr. Maguire testified that Sam was functioning relatively well in the ISTeP program with the Behavior Support Plan in place. Sam was able to access the curriculum with the structure of the program and implementation of the Behavior Support Plan. Dr. Maguire did not identify any new behaviors, changes in behavior or new or additional emotional problems that would warrant the need for projective testing.
Dr. Stevens, who would be conducting the projective testing, did not testify at the Hearing. Consequently there was not any specific information about the projective testing she planned to conduct, why it was necessary to conduct projective testing, what she expected to learn from the projective testing and whether there were other alternatives. I decline to override the parents’ refusal to consent to projective testing. No testimony has been provided that Sam will be denied a FAPE if this projective testing is not conducted.
ORDER
I find that the IEP dated December 23, 2009 to December 22, 2010, provides Sam with a free, appropriate public education in the least restrictive environment.
Maynard shall conduct an early three year reevaluation of Sam, to include a speech and language assessment, a physical therapy assessment, educational achievement testing, an educational assessment and a classroom observation.
I decline to override parents’ refusal to consent to projective testing.
So Ordered by the Hearing Officer,
____________________________
Ann F. Scannell
Dated: June 15, 2010
1
The parents declined to participate in the hearing and were not present at the hearing. Although they were given an opportunity to submit a written closing argument, the parents did not do so.
2
Sam is a pseudonym used for confidentiality and classification purposes in publicly available documents.
3
BSEA Hearing Rule X(F) provides that if a party fails to appear at the scheduled hearing, the Hearing Officer may take evidence and issue orders as may be necessary, including, but not limited to, ordering an educational program or placement for the student.
4
Sam’s Behavior Support Plan was supported by the parents so was consistently being implemented at this time.
5
Direct service with the adjustment counselor had been modified from ten minutes, five times a week to thirty minutes, twice a week.
6
34 CFR 300.300(b)(4)
7
73 Fed. Reg. 73015
8
Schaffer v. Weast , 546 U.S. 49, 62 (2005)
9
Sam had been placed in the regular education classroom after his parents revoked consent for special education services.
10
Schaffer v. Weast , 546 U.S. 49, 62 (2005)
11
603 CMR 28.04(3)
12
34 CFR 300.300(c)
13
Sam was found ineligible for special education services.
14
The parents subsequently requested that Sam be re-enrolled in special education. Sam has not returned to special education because of the pending BSEA Hearing.