Duxbury Public Schools and Ishmael – BSEA # 07-2419



<br /> Duxbury Public Schools and Ishmael – BSEA # 07-2419<br />

COMMONWEALTH OF MASSACHUSETTS

Bureau of Special Education Appeals

In Re: Duxbury Public Schools & Ishmael1

BSEA #07-2419

DECISION

This decision is issued pursuant to M. G. L. 71B and 30A, 20 U. S. C. § 1400 et seq ., 29 U. S. C. § 794 and the regulations promulgated under those statutes. A hearing was held on March 15, 2007 at the Alden School in Duxbury, MA and on April 10, 2007 at 11 Dartmouth Street, Malden, MA. Those present for all, or part, of the proceeding were:

Parent

Parent

Andrew Clark Psychiatrist, Children and Law Program, Massachusetts General Hospital

Wayne Frieden School Psychologist, Duxbury Public Schools

Pat Weatherlow Special Education Liaison, Duxbury Public Schools

Sharon Horton Administrator of Special Education, Duxbury Public Schools

Colby Brunt Attorney for Duxbury Public Schools

Elaine Hurley Court Reporter

Mary Ellen Coughlin Court Reporter

Lindsay Byrne Hearing Officer

The official record consists of documents submitted by the mother marked P-1 through P-10, documents submitted by the School marked S-1 through S-38, and approximately 6 hours of recorded oral testimony. The School District, the moving party, was represented by counsel; the mother, the responding party, was not. The mother testified briefly on the first day of hearing but did not otherwise participate in the hearing. Copies of the tape recording of the proceeding, as well as written transcripts prepared by a court reporter, were sent to the mother in advance of the due date established for submission of written closing arguments. The record closed on May 11, 2007.

Issues :

1. Whether, in order to ensure the provision of a free, appropriate public education to the Student, Duxbury may conduct a psychiatric evaluation of the Student over the objection of his mother?

2. Whether, in order to ensure the provision of a free, appropriate public education to the Student, Duxbury may conduct a home assessment over the objection of the Student’s mother?

Summary of the Evidence :

1. Ishmael is a 16 year old, 10 th grade student enrolled in a full inclusion program at Duxbury High School. His current program includes daily special education academic support and weekly counseling, along with organizational and production modifications in his regular classes, including academic classes at the honors level. (S-1) Ishmael has above-average to superior intellectual potential and has been diagnosed with Attention Deficit Disorder and Depression. (S-1, S-11)

2. Ishmael’s mother has sole legal and physical custody of the Student. Ishmael’s father has regular visitation and is an active participant in the Student’s life. There is a history of intense conflict concerning custody and decision-making for the Student. (Parents)

3. On February 15, 2006, Ishmael’s mother admitted him to a partial psychiatric hospitalization program at Franciscan Children’s Hospital. He was discharged on February 23, 2006, with instructions for close supervision. (S-9)

4. On his return to school Duxbury conducted an initial special education evaluation, which included psychological and functional behavioral assessments. (S-10, 11, 12)

5. On March 30, 2006, the mother sent an email to the Duxbury High School Psychologist, Wayne Freiden, stating “[Student] has made it very clear since he was hospitalized that if he were going to kill himself he would not do it at home…. I believe he is totally capable of killing himself. I know that he has thought about it. I predict he would do it at school”. (S-13)

6. Duxbury requested clarification of Ishmael’s mental status from the mother. She submitted a “Back to Work/School Note” from Jordan Hospital dated April 3, 2006 stating that the Student’s mental health status was stable and without suicidal ideation and recommending an immediate return to school. The document contained no suggestions for school modifications or interventions to the Student’s regular education program. (S-14)

7. The Team met on May 20, 2006, found Ishmael eligible for special education and developed an IEP providing for daily academic support, weekly counseling, and organizational and production modifications. The IEP also contained a “safety plan” to address times when Ishmael displayed signs that he was overwhelmed by his emotions in the school setting. The “safety plan” reads:

At times, [Ishmael’s] depression can cause him to feel overwhelmed. When this happens, he is unable to tend to tasks in the classroom. Signs that [Ishmael] is overwhelmed manifest in, but are not limited to, putting his head on the desk, sleeping in class and crying in class. When a teacher or other adult notes this behavior, they are to call the office and request an escort to take [Ishmael] to his guidance counselor, the school psychologist, the school nurse or the main office. [Ishmael] should not be allowed to leave class alone during these times. Should he leave class without permission, the teacher or other staff person is to notify the office immediately.

The mother accepted the IEP on May 25, 2006. (S-1)

8. Dr. Laurie Cestnick and Dr. Robert Weaver conducted neuropsychological and projective evaluations of the Student in April 2006. The Weaver Clinic’s report was received by Duxbury on September 22, 2006. The evaluations found that Ishmael had at least above average cognitive functioning, with relative weaknesses in executive functioning and auditory attention. They reported that his poor self-image, poor self-confidence, anxiety about social relations, and hypervigilant reaction to stressors interfered with his daily functioning at times and contributed to his depression. They reached diagnoses of Attention Deficit Disorder and Depression. They recommended that Ishmael’s IEP include: continual monitoring for “suicidal tendencies”; specific supportive and organizational strategies; two periods per week of academic support in a 1-1 setting, and biweekly meetings with a school adjustment counselor. They also noted Ishmael’s anxiety about “his mother’s role in his academic performance” and recommended that she permit him to advocate for himself in school. (S-21)

9. A Team meeting was held on September 26, 2006, to discuss Ishmael’s adjustment to school, the findings of the Weaver Clinic and the mother’s letter to Ishmael’s teachers, dated September 6, 2006, in which she again raises the issue of the risk of in-school suicide for Ishmael. (Freiden; S-21, S-18) The mother objected to any discussion of the Weaver Clinic evaluation report claiming that the results were incomplete, inaccurate and subject to revision. (Horton) No subsequent revised report appears in the record.

Mr. Freiden, the Duxbury School Psychologist, formally assessed Ishmael’s adjustment to school in September 2006. He noted that Ishmael reported feeling much better in September than he had in the spring 2006, but that he did feel anxious, depressed and distracted at times in school. Teachers reported that Ishmael was cooperative, had good focus and attention, got along with other students, and was performing well academically. None reported concerns about Ishmael’s in school behavior or affect. (S-19; Freiden)

As a result of the Team discussion Duxbury proposed an Amended IEP which reduced the academic modifications to regular education expectations, incorporated the Weaver Clinic findings and positive teacher reports, and retained the “safety plan” developed in the May 2006, IEP. The mother rejected the proposed Amendment on October 13, 2006. (S-2, 3; Horton; Weatherlow)

10. In a letter dated September 29, 2006 Dr. Kenneth Bryant of the Weaver Clinic indicated that Ishmael had been diagnosed with Major Depression, Recurrent and was being treated for ADHD. Dr. Bryant wrote:

[the Student] is prone to brief, rapid onset, episodes of depression, characterized by intense weeping and sadness. A risk of suicide behavior cannot be ruled out. At such times his school needs to be alerted so that the occurrence of such an episode be noted, monitored and should be supervised at those times. His family should be notified. We have asked his mother to try to bring him to the clinic at those times when he is in such a cycle for further evaluation.

11. On Tuesday, October 10, 2006, the mother notified Duxbury that Ishmael had been admitted to a psychiatric hospital as a result of self-injurious behavior at school. School personnel denied any knowledge of the alleged self-injurious behavior. (S-24; see also S-3) The mother requested that a re-entry meeting take place on October 30, 2006 at 2:15. She also requested that Ishmael be permitted to participate in after school activities during his hospitalization. (S-25)

12. Ishmael attended the partial hospitalization program at McLean Southeast from October 10 to October 16, 2006. On October 16, 2006 Dr. Molbert, the Medical Director of the program, wrote that Ishmael could return to school without restrictions. (S-28) He indicated that Ishmael could participate in regular after school activities without individual supervision. (S-29) He also signed a “Physician’s Statement for Temporary Home or Hospital Education” indicating that Ishmael had a major depressive disorder that might require home educational services for recurrent periods of less than 14 days. (S-26)

13. Ishmael returned to Duxbury High School on October 20, 2006. There had been no communication from the Student, the mother, the partial hospitalization program or his treatment team to anyone at Duxbury High School prior to his re-entry to school. No clinical information was relayed to the school at any time. In accordance with the “safety plan” in the accepted IEP a “re-entry” meeting was held on October 23, 2006. The participants devised a work completion plan to assist Ishmael to keep abreast of his regular academic course requirements. Ishmael completed all missed course work in accordance with the plan. (Weatherlow)

14. A Team meeting was held on November 3, 2006. The Student and his father participated; the mother did not. (S-30; P-5, S-4) The Team decided that additional information about the Student’s mental health status, and clarification and recommendations from his therapeutic treatment team, would assist school personnel in developing appropriate strategies and supports to ensure Ishmael’s safety and academic progress. On November 14, 2006 Duxbury sent the mother a request for her consent to a psychiatric evaluation and a home assessment. She refused consent. (P-9, P-10, S-5; Horton; Weatherlow; Freiden; Mother)

15. Duxbury requested a hearing on November 30, 2006, seeking an administrative override of the Parent’s refusal to consent to the proposed psychiatric evaluation and home assessment. Sharon Horton, the Administrator of Special Education for Duxbury Public Schools, explained that Duxbury sought to reconcile conflicting information in the Student’s record about his social/emotional/behavioral status. She pointed out that both Duxbury’s psychologist, Mr. Freiden, and the Weaver Clinic had concerns about the Student’s functioning in the school setting in the spring, 2006. Later reports from teachers and the Student in September, 2006 indicate adequate school functioning. Shortly after the positive teacher reports and observations there was a sudden psychiatric hospitalization. No clinical recommendations for modifications to a regular high school program were made by the hospital treatment team. The team wrote both that Ishmael could return to full participation in school and after school activities and that he needed home tutoring services. This inconsistent data, coupled with the mother’s alarming e-mails concerning the potential suicide risk for Ishmael, led Ms. Horton to believe that a comprehensive, expert evaluation was necessary to ensure that Duxbury developed an educational program that appropriately met Ishmael’s individual needs. Ms. Horton also testified that the mother’s refusal to share any information about Ishmael’s mental health treatment, or to permit any form of communication between the School and the Student’s clinical providers, contributes to her concern that Duxbury does not have sufficient, or accurate, information to provide appropriate educational services to Ishmael. (Horton)

Ms. Weatherlow, the special education liaison for Ishmael, testified that although the current “safety plan” is the best that can be devised with the information about Ishmael the School currently has, the High School teachers are not confident of their abilities to recognize behavioral symptoms that require implementation of the safety plan outlined in the IEP. She stated that more descriptive, current information about Ishmael would be helpful in better targeting services and interventions for him. (Weatherlow)

17. Mr. Frieden testified that communication from Ishmael’s mental health providers
was critical to the Team planning process. Mr. Frieden emphasized that Ishmael’s mental health status affects his ability to be safe in school, to engage in the curriculum and to progress effectively in the curriculum. Reliable, current information from therapists will help the school team understand the effect of Ishmael’s emotional state on his school functioning, assist in the design of interventions to promote academic success, avoid stressors that trigger anxiety or depression, and help Ishmael develop appropriate coping strategies for stressors he encounters outside school. Mr. Frieden stated that the lack of accurate mental health information hampers the development of a highly individualized IEP for Ishmael. (Frieden)

18. Ishmael’s father agreed that more information was needed about Ishmael’s current mental health condition. He testified that if he had any decision-making authority he would consent to the proposed evaluations. (Father)

19. The mother testified that she would not consent to any psychiatric evaluation of her son, and would not consent to any home assessment that sought information from her son. Furthermore, she testified, she would not permit any communication, any information-sharing, or any record release between any of Ishmael’s clinical or mental health treatment providers or programs and the Duxbury Public Schools. The reasons she offered for refusing to share information with the Duxbury Public Schools were that Ishmael had participated in too many clinical evaluations over the course of the previous year, that an evaluation by an “outside” clinician would disrupt his current therapeutic relationships, and general privacy concerns. (Mother)

20. Andrew Clark, a board certified child and adolescent psychiatrist, is currently the Medical Director of the Children and the Law Program at Massachusetts General Hospital. (S-38) Duxbury contacted him in November 2006, to request that he conduct an independent psychiatric evaluation of Ishmael. Dr. Clark testified that he reviewed the little psychiatric information Duxbury had available, as well as the Student’s IEP. He was concerned with the lack of clarity of the diagnosis, the lack of information concerning the impact of the diagnosis on school functioning, the inconsistency of recommended responses, and the coordination of medication with diagnostic criteria. Dr. Clark also testified that the “safety plan” in Ishmael’s IEP puts teachers in the inappropriate position of assessing a risk of suicidality. That type of risk assessment, according to Dr. Clark, is a clinical decision. He noted that the supposed “signs” listed in the safety plan are common behaviors of teenage boys. (Clark)

Dr. Clark proposed to conduct a comprehensive psychiatric evaluation with the following components:

1. a clinical interview of the Student, approximately 1½ hours for each of 2 sessions;

2. separate interviews of each parent, 1 session each of approximately 2 hours;

3. a review of all of the Student’s mental health treatment records;

4. direct conversations with the Student’s current psychiatrist, therapist and school counselor.

Dr. Clark testified that a detailed a written description of the proposed psychiatric evaluation, along with a description of Dr. Clark’s professional credentials, was provided to the Parent at least by February 20, 2007. (Aministrative Record) The purpose of the proposed psychiatric evaluation is to identify what services and supports the school needs to develop to provide a free, appropriate public education to Ishamael. Dr. Clark does not intend to create a working therapeutic relationship with the Student, or to interfere in any of his current treatments. Dr. Clark would answer the questions put to him by Duxbury, in particular whether the Duxbury High School setting is appropriate for Ishmael, and whether the school has the capacity to keep Ishmael safe and prevent a suicide. Dr. Clark emphasized that an adequate assessment could not be completed without permission to interview Ishmael’s current mental health treatment providers. With that permission Dr. Clark could complete the evaluation within thirty days. (Clark)

Findings and Conclusions

There is no dispute that Ishmael is a student with special learning needs as defined in 20 U. S. C. § 1400 et seq . and M. G. L. 71B and is entitled to receive a free, appropriate public education. The issue presented here is whether in order to provide an individually tailored education program responsive to all of Ishmael’s identified special needs, a comprehensive psychiatric evaluation is necessary. After careful consideration of all the evidence introduced and arguments made at the hearing, it is my determination that the clear preponderance of the credible evidence supports a finding that the mother’s refusal to consent to a psychiatric evaluation presents a barrier to the provision of a free, appropriate public education to Ishmael.

It is abundantly clear from the evidence presented by both parties that Ishmael’s mental health is the primary disability affecting his education. Ms. Horton, Ms. Weatherlow and Mr. Freiden provided compelling, convincing testimony detailing how Ishmael’s mental health status affects the delivery of appropriate services to him by causing abrupt and extended absences for intensive mental health treatment, intermittent periods of inattention, disorganization, and anxiety in class, occasional inability to cope with production and homework demands, impaired social/emotional functioning with peers, and most critically, an ever present risk of suicide in school. While the mother has consistently requested modifications and services in the regular education program to address Ishmael’s difficulties, she has equally consistently refused to share unfiltered information about Ishmael’s mental health condition, treatment, prognosis, or intervention recommendations. No reasonable basis was established for this lack of transparency.

Federal and state special education laws set up a framework in which school personnel, parents, and auxiliary service providers in areas of specific disability are expected to work cooperatively to develop a plan under which a student can make progress in all areas of learning. When the parents suspect the presence of a disability which could affect school performance they may request the school to conduct an evaluation. When the school needs additional information to understand and appropriately address a student’s school performance it must ordinarily receive the parent’s consent before evaluating a student. 20 U. S. C. § 1414 (a) (B) and (c). In most instances the school and the parents agree to elicit and share necessary information for the benefit of the student. Where, however, the parent declines or fails to respond to a school’s request for consent to evaluate, the school must determine whether that refusal to consent is likely to result in a denial of a free, appropriate public education to the student. If so, the school must request an alternate consent so that it can fulfill its responsibilities under federal and state law to offer the student, a free, appropriate public education.

Here, Duxbury appropriately identified the Student’s primary area of disability. It noted conflicting and missing information concerning Ishmael’s current mental health status and needs. The Duxbury Team responded to the mother’s repeated assertions about the risk of suicide by requesting additional information from Ishmael’s mental health treatment providers. When access to that information was declined, Duxbury then proposed an “independent” psychiatric evaluation by Dr. Clark, a forensic psychiatrist with no previous ties to Duxbury and no prior knowledge of the Student. This request for evaluation is consistent with Duxbury’s obligations under 20 U. S. C. § 1414 (a) (b) and (c).

The IDEA 2004, permits a school district to re-evaluate a student without parental consent when the evaluation is “warranted” and to secure substitute consent through the hearing process. 20 U. S. C. § 1414 (I) (D) (II); 20 U. S. C. § 1414 (2) (i); 34 CFR 300.303. When determining whether a proposed evaluation, service, or action under the IDEA is “warranted” the inquiry focuses primarily on whether there will be an abridgement of a free, appropriate public education without the suggested intervention. In the matter at hand, the gravity of the Parent’s and the School’s concerns about Ishmael’s safety, and the documented instability of Ishmael’s functioning in different settings and at different times, lend weight and legitimacy to the School’s search for additional information. Based on the credible testimony of Ms. Horton, Ms. Weatherlow and Mr. Frieden, I find that the psychiatric evaluation proposed by Duxbury is “warranted”, as without comprehensive, expert, independent information about Ishmael’s mental heath status, needs, treatment, and out-of-school environmental stressors, appropriate in-school interventions and supports cannot reasonably be developed.

Under Massachusetts regulations, when a parent does not consent to a proposed re-evaluation:

The school district shall consider with the parent whether such action will result in the denial of a free appropriate public education to the student. If after consideration, the school district determines that the parent’s failure or refusal to consent will result in a denial of free appropriate public education to the student, it shall seek resolution of the dispute through the procedures provided in 603 CMR 28.08. Participation by the parent in such consideration shall be voluntary and the failure or refusal of the parent to participate shall not preclude the school district from taking appropriate action pursuant to 603 CMR 28.08 to resolve the dispute.

603 CMR 28.07 (1) (b). The availability of a “substitute consent” mechanism is subsumed in the broad grant of jurisdiction to the BSEA to hear “any matter concerning the eligibility, evaluation , placement, IEP, provision of special education in accordance with state and federal law. 603 CMR 28.03 (3)(a). (emphasis added) Consistent with federal law, Massachusetts hearing officers therefore may permit a re-evaluation of an eligible student over the objection of the student’s parent when there has been a finding that a failure to evaluate would likely lead to a denial of a free appropriate public education for that student. A finding that failure to secure information that could reasonably lead to the development of an individually tailored IEP would meet the less stringent federal regulatory standard requiring a showing that a re-evaluation be “warranted” before dispensing with parental consent to an evaluation.

In this matter I am persuaded by the credible testimony of Ms. Horton, Ms. Weatherlow and Mr. Frieden, that failure to conduct a comprehensive psychiatric evaluation as proposed by Duxbury is likely to lead to, and may be currently posing, a denial of a free, appropriate public education to Ishmael. There is no persuasive evidence in the record to the contrary.

The proposed psychiatric evaluation outlined by Dr. Clark, and sought by Duxbury, is carefully tailored to elicit information that will help school personnel develop appropriate supports and programming in the educational setting. It is also responsive to the mother’s repeated requests for monitoring and interventions targeted to Ishmael’s risk of suicide. Given the comprehensive nature of the proposed psychiatric evaluation, however, there does not appear to be any reason for an additional home assessment. The information Duxbury seeks through the home assessment would duplicate that gleaned through the psychiatric evaluation, and is therefore unwarranted at this time.

By seeking and securing this substitute consent for a comprehensive psychiatric evaluation of Ishmael Duxbury has fulfilled its procedural obligations under federal and state special education regulations to offer appropriate evaluations. Should the Parent or Student not cooperate with the proposed evaluation, Duxbury cannot reasonably be held responsible for any alleged failure to design or deliver fully appropriate special education programming to Ishmael.

ORDER

Duxbury may proceed, without the parent’s consent, to conduct the comprehensive psychiatric evaluation of the Student as outlined by Dr. Clark.

There is no convincing evidence that an additional home assessment is warranted at this time.

Lindsay Byrne, Hearing Officer Date:


1

“Ishmael” is a pseudonym selected by the Hearing Officer for use in for use in publicly available documents to protect the privacy of the Student.


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