COMMONWEALTH OF MASSACHUSETTS
SPECIAL EDUCATION APPEALS
In Re: Ludlow Public Schools
BSEA #11-7933
DECISION
This decision is issued pursuant to the Individuals with Disabilities Education Act or IDEA (20 USC Sec. 1400 et seq.); Section 504 of the Rehabilitation Act of 1973 (29 USC Sec. 794); the Massachusetts special education statute or “Chapter 766,” (MGL c. 71B) and the Massachusetts Administrative Procedures Act (MGL c. 30A) and the regulations promulgated under these statutes.
At issue here is whether the school district has demonstrated that the placement of a sixteen-year-old special education student must be changed to a substantially separate, therapeutic setting in order to provide the Student with FAPE. The Parent disputes Ludlow’s position, and asserts that the School has neither adequately evaluated Student nor proven that he could not be educated in his current, less restrictive setting with additional supports or services.
On May 9, 2011, the Ludlow Public Schools (Ludlow or School) filed a request for an expedited hearing with the Bureau of Special Education Appeals (BSEA), seeking a determination that Student must be placed in a substantially separate therapeutic day school placement for a 45-day, extended evaluation of his emotional and behavioral needs. Ludlow alleged that Student’s escalating and troubling behavioral problems and resulting discipline, as well as his increasingly volatile and fragile emotional state were interfering with his ability to access the curriculum, and needed to be assessed in a separate setting having more therapeutic supports than available in Student’s current placement within Ludlow High School.
On May 10, 2011 the BSEA granted expedited status to the hearing request and scheduled a hearing for May 24, 2011.
The first day of hearing took place on May 24, 2011 as scheduled. With the parties’ permission, the case was removed from the expedited track in order to allow additional days of hearing. Based on the disclosure, at the hearing, of the existence of two recent reports (one from each party) that had not been reviewed by the TEAM, the Hearing Officer directed the School to conduct a TEAM meeting before resumption of the hearing. A TEAM meeting was duly convened and a new IEP was proposed. On June 9, 2011, based on the TEAM meeting, the School amended its hearing request to indicate that the relief now sought was an order directing placement of Student in an out of district therapeutic day school rather than an order for an extended evaluation. The hearing resumed on June 16 and 28, 2011.
The first two days of hearing were held at the offices of Catuogno Court Reporting Services in Worcester and Springfield, MA, respectively. The third day of hearing, consisting of the testimony of two witnesses, was conducted by speaker phone.
The School was represented by counsel, and the Parent was represented by an advocate. Each party presented documentary evidence and examined and cross-examined witnesses. The parties submitted written closing arguments on July 11, 2011, and the record closed on that day.
The record in this case consists of the School’s exhibits S-1 through S-15, the Parent’s exhibits P-1 through P-5, and several hours of tape-recorded testimony.
Those present for all or part of the proceeding were:
Student
Student’s Mother
Eva Tillotson Special Education Supervisor, Ludlow Public Schools
Don Casella Clinical consultant to Ludlow Public Schools
Regina Momnie Psychologist, Ludlow Public Schools
Cory Carr Paraprofessional, Ludlow Public Schools
Meredith Smith Special Education Teacher, Ludlow Public Schools
John Lattanzio Special Education Teacher Ludlow Public Schools.
Dr. Mark Caron Neuropsychologist (testified by speaker phone)
Jodi Devine Private Counselor (testified by speaker phone)
Claire Thompson, Esq. Attorney for Ludlow Public Schools
Kelly LaRoe Advocate for Parent
ISSUE PRESENTED
The sole issue to be decided is whether the Ludlow Public Schools has proved that Student requires an out of district therapeutic day placement in order to receive a free, appropriate public education (FAPE).
POSITION OF LUDLOW PUBLIC SCHOOLS
During the 2010-2011 school year, Student demonstrated an escalating pattern of problematic and disruptive behavior, including aggressive behavior, inappropriate language, tardiness, leaving class without permission, and refusal to comply with teacher requests. Additionally, the School is concerned by Student’s emotional dysregulation. Student’s emotional and behavioral issues have interfered with his participation in academics and prevented him from making effective educational progress.
Student’s current substantially separate placement within Ludlow High School does not have the clinical capacity to address Student’s emotional and behavioral needs in a manner that will enable him to access the curriculum. For example, staff often cannot de-escalate Student, and he ends up going home, thereby losing access to education.
Initially, Ludlow proposed an extended evaluation for Student in a substantially separate day program that serves students with emotional and behavioral issues. After further evaluations and a TEAM meeting, Ludlow has determined that Student’s educational placement needs to be changed to such a program for Student to receive a free, appropriate public education. Student needs an educational placement that has a strong clinical component to address the emotional and behavioral issues that impede his access to the curriculum.
POSITION OF STUDENT
Ludlow has attempted to change Student’s placement without sufficient evaluation and without first determining whether he can receive FAPE in his current setting with additional aids and services. The School failed to conduct Student’s re-evaluation in a timely manner, which has contributed to Student’s behavioral issues.
In addition, an examination of Student’s disciplinary record reveals that most of the behavior complained of is related to Student’s diagnosis of ADHD, and/or is of a type that the School should be able to handle internally, with an appropriate behavior intervention plan. Moreover, in at least some of the incidents which the School points to as examples of Student’s aggressive behavior, Student was, in fact the victim of aggression by other students.
Finally, the School now has information suggesting that Student’s behavioral problems stem from cognitive and learning challenges, rather than the emotional disturbance suspected by the School, and the School should adjust Student’s program to address Student’s learning needs before changing his placement to a more restrictive setting designed for students with emotional and behavioral disabilities.
FINDINGS OF FACT
1. Student is a sixteen year old boy who is enrolled in the Ludlow Public Schools. His eligibility for special education services from Ludlow is not in dispute. As of the hearing date, Student was completing his second year at Ludlow High School.1
2. From seventh grade forward, pursuant to his IEPs, Student has been enrolled in Ludlow’s Structured Individualized Program (SIP), first in his middle school, and then at Ludlow High School. The SIP program at Ludlow High School is designed to provide a structured, supportive setting for students with a variety of behavioral issues. The program comprises two special education teachers, Ms. Meredith Smith and Mr. John Lattanzio, three paraprofessionals, and a consultant clinician, Mr. Don Casella. While the SIP program provides substantially separate classroom instruction for all academic subjects, students generally attend general education classes for specials (physical education, lunch, etc.) and, additionally, SIP students may move into inclusion classes for academics if called for in their IEPs or if they demonstrate appropriate behavior. An important component of the SIP program is a “time out of class” component known as “shut down,” which is designed to assist students in regaining control so that they can return to class. Students may remain in shut down for one or two class periods or for at least one day. Students in shut down sit in a separate room and have their class assignments delivered to them, and work on them under the supervision of a classroom aide. (Smith)
3. Student is described as an outgoing young man with many friends. Cognitively, he functions in the low average to average range. He has academic strengths in word reading/decoding and math, and, according to teachers, is capable of grade level academic work with support, when motivated. (Smith, S-1)
4. Student carries a longstanding diagnosis of ADHD, which interferes with his ability to focus on assignments and pay attention to detail, and also contributes to impulsivity. (During elementary school, Student also was identified as having a specific learning disability and communication disability; the record does not indicate when these designations were discontinued.) Student has had IEPs since elementary school. (S-1) As stated above, Student has been enrolled in the SIP program since middle school, and transitioned into the high school component of the program in ninth grade (2009-2010).
5. According to the documentary record, Student had some behavioral problems during the second half of seventh grade. According to Student’s eighth grade IEP (September 2008 through May 2009)2 , during that period, Student had problems with focus, attention to task, and “mild to moderate disruptive actions during the school day…” as well as an “inability to ‘stop and think before he acts’ [which] impacts all aspects of the school day’” including both structured and less structured activities. (P-2) Student reportedly became argumentative in response to constructive criticism and redirection. Additionally, reportedly, Student’s classwork and homework completion as well as test preparation were inconsistent and dependent on his mood and cooperation level on any given day, despite guided study period and after-school homework help. (P-2)
6. Student’s eighth grade IEP referred to above contained goals in behavior, written language and reading comprehension. According to progress reports for the behavioral goal, Student’s behavior during the first term of eighth grade was positive and productive in both the small structured classroom and general classrooms. This behavior, as well as work completion, deteriorated somewhat during the second term, was inconsistent during the third term, and, by the final term, was marked by “significant oppositional, disruptive, and disrespectful behaviors…” Student struggled with work completion and argued with teachers when directed to work. While Student had been placed in general classrooms for many subjects during the middle of the school year (with support from the SIP program), by the final term he spent less time in inclusion classrooms. (P-2)
7. In written language, Student was “reluctant” to write, and tended to rush through assignments without using tools such as graphic organizers. His performance in writing was affected by his effort and behavior. By the end of eighth grade, Student’s writing had improved, however. Student’s strongest performance was in reading comprehension, where he participated actively and cooperatively in reading/literature, using grade level material, both within the SIP program and in inclusion classes. Student’s performance slipped during the final term, which Student attributed to “not trying.” (P-2)
8. The record does not contain an IEP or progress reports for Student’s first year in ninth grade (2009-2010). According to the subsequent IEP (for 2010 – 2011, Ex. S-1), Student’s behavior fluctuated during 2009-2010. He started the year with most subjects in the self-contained class, then worked his way back into general education classes as the year progressed. (S-2)
9. Student’s IEP for 2010-2011 was issued in May 2010. This IEP listed the following as Student’s strengths: response to positive reinforcement, word reading/decoding, spelling, math skills, daily organization, and ability to do grade level work when motivated. Student’s areas of weakness continued to be difficulty with attention to task, inconsistent work completion, difficulty with written expression and independent reading comprehension, rushing through assignments and assessments, and difficulty with disappointment and constructive criticism. (S-1)
10. As in prior years, the 2010-2011 IEP contained three goal focus areas: behavior (including compliance with rules and work completion), written language, and reading comprehension. The service delivery grid called for all academic subjects to be provided in the SIP classroom. In addition, the grid called for 1×30 minutes of counseling per five day cycle. Parent accepted this IEP and placement in full. (S-1)
11. A document entitled Behavior Intervention Plan (BIP) accompanied the 2010-2011 IEP. This BIP appears to be a description of a program-wide plan, applicable to the SIP program as a whole, rather than an individualized plan developed for Student. The only reference in the plan to Student in particular was the identification of Student’s “target behaviors” as difficulty in attending to tasks, completing assignments, and accepting consequences for behavior. The designated replacement behavior was to “improve school and class behavior as measured by time spent in scheduled rotation,” i.e ., time spent within the classroom as opposed to in “shut down” or other out of class setting.
12. The remainder of the plan consisted of a description of a “Reductive Procedure” and “Reinforcement Procedure.” The Reductive Procedure consisted of a hierarchy of consequences for negative behaviors, beginning with reminders of expectations, and then progressing to warnings of consequences for continued infractions, then “time out” for one class period, “shut down” for the remainder of the day or more, being sent home, or to an interim alternative setting for one or more days. The Reinforcement Procedure comprised rewards for positive behaviors, which included verbal recognition, being allowed to stay in an academic setting or to return to class from time out or shut down, and being allowed to participate in unspecified reinforcing activities. (S-1) As stated above, the Reductive Procedure and Reinforcement Procedure appeared to be applicable to the class as a whole, rather than to any individual student.
13. The record does not contain any school evaluation reports prior to 2011. The IEP for 2010-2011 refers to a WISC-IV conducted in April 2005 in which Student’s performance was low-average to average, a WIAT-II conducted in May 2009 in which scores were low-average to average. (Subtest scores were not specified for either assessment.) Student’s MCAS score for ELA in sixth grade was “incomplete;” his scores for math in both sixth and seventh grade and ELA for seventh grade were all in the “warning” range.
14. Several witnesses provided testimony about Student’s functioning during the 2010-2011 school year, including testimony about the behavioral concerns leading Ludlow to request the instant hearing. Additionally, the record contains documentation of various behavioral incidents.
15. Ms. Meredith Smith was Student’s ELA and math teacher during 2010-2011. Ms. Smith has 12 years of special education teaching experience. She holds a Master’s degree in special education and a license to teach students with moderate special needs in grades 5 through 12. Ms. Smith has approximately seven years of experience teaching in private special education schools for high school aged students with emotional and behavioral disabilities, as well as approximately three years teaching students with cognitive disabilities within Ludlow High School. Ms. Smith began teaching in the SIP program at the beginning of the 2010-2011 school year.
16. Ms. Smith testified that Student started the 2010-2011 school year with good performance, and that she had “great rapport” with him.
17. During the first months of the school year (from approximately September through December 2010), Student’s behavioral infractions consisted primarily of tardiness (to school or to class), or similar misconduct, and then skipping the detention that was imposed as a consequence. If Student skipped the first detention, he would receive a second one; if he skipped that one (which he frequently did), he was suspended. (S-3)
18. In or about November 2010, a meeting was held with Parent and Student to discuss the tardiness issue. Parent offered to transport Student to school, and the School began providing a paraprofessional to escort Student from one class or activity to the next. (Smith)
19. Ms. Smith testified that her concern over Student’s behavior increased as the school year progressed. More specifically, Ms. Smith testified that while Student violated some rules during the beginning part of the year, Student did better at accepting consequences (i.e., “serving time” in “shut down”) than he did after mid-year. From that point forward, Ms. Smith testified that Student was less willing to accept consequences, and showed increasingly problematic behavior. (Smith)
20. Ms. Smith stated that the problematic behavior that concerned her included swearing (which included swearing at teachers and occurred in her presence approximately weekly), as well as use of slurs based on race, disability, gender and perceived sexual orientation. Student either directed these slurs at other students with whom he was angry, or used them as adjectives to describe things that displeased him. Other behaviors included defiance of her requests to follow school rules (e.g., to remove a sweatshirt hood), and verbal threats to other students. (Smith)
21. Ms. Smith testified regarding several incidents occurring during and after December 2010. On or about December 3, 2010, Student used his cell phone (a prohibited activity) to call Parent for permission to fight another student. Ms. Smith was concerned about Student’s emotional state, and testified that he was “extremely agitated,” and pacing. After about 45 minutes, Student was able to calm down and leave school with Parent. (Smith)
22. On or about December 6, 2010, Student refused to leave class and go to shut down when directed to do so. On December 10, 2011, he yelled out “[another student] is an airhead” in the cafeteria, disrupting detention that was taking place there. Ms. Smith was told about an incident on January 19, 2011, during which Student allegedly punched another student, although she had no direct knowledge of the incident. (Smith) Ms. Smith described additional incidents during March and April 2011, including an emotional outburst when Student was told he should not have left class to attend a college fair without his escort (a substitute teacher had apparently given permission), one or more incidents of refusal to work, walking out of class, slapping a student and becoming agitated when confronted, conflicts with other students, and episodes of Student crying and asking to go home. Some of these incidents required involvement of several staff. (Smith, S-39c)
23. In December 2010, the school convened a progress meeting to discuss Student’s academic and behavioral performance in the SIP program. As a result of the meeting, SIP program staff developed goals for the next several weeks and strategies to support Student, including providing him with make-up work on weekends to prevent him from falling behind, encouraging Student to access school counseling resources, and monitoring the effects of a new medication. (Tillotson, S-3(d))
24. According to a progress note written by Ms. Smith on March 1, 2011, Student made “significant improvements” in his classroom performance after the December meeting, in that he focused on completing high quality work, in a timely manner, showing “a huge improvement in his overall work habits and work ethic.” (S-3(d))
25. The same note stated, however, that Student’s behavior continued to be challenging, particularly outside of class, in his relationships with both peers and adults. With respect to peers, Ms. Smith noted that Student could become “agitated when frustrated by others, and he often respond[ed] to this frustration by becoming verbally hostile. He will call his peers names or challenge them either verbally or physically when he is angered by them. (S-3(d))
26. Ms. Smith further noted the following regarding relationships with adults:
When [Student] is redirected by authority figures, he can become highly challenging, especially when he perceives that he is being treated unfairly. He has a difficult time accepting responsibility for his behaviors when there is a consequence he doesn’t want to face. At times, [Student] has reached the point of explosion, and the result of his disproportional responses to redirection disrupts the learning and safety of others. Currently, he is not able to use his experiences to extinguish incidents that result in repeated consequences. (S-3(d)).
27. In her testimony, Ms. Smith reiterated her concern about what appeared to be Student’s disproportionate emotional reactions to relatively minor issues (including a couple of incidents of crying, and agitation), that it was difficult to calm Student down, and that he sometimes ended up leaving school and going home. (Smith)
28. With respect to academic performance, Ms. Smith testified that Student was “successful” in ELA and math class until approximately March 2011, at which time he began to refuse to do schoolwork. According to Ms. Smith, Student did little or no schoolwork during April 2011 and spent much time in shut down through May 2011. (Smith) During the course of the hearing in June 2011, after an alleged behavioral incident, the School and Parent agreed that Student would be offered home instruction for the remainder of the school year. (Tillotson)
29. Ms. Smith testified that the SIP program would refer Student to the School Adjustment Counselor, to the school psychologist, or to the consultant counselor (Don Casella) for assistance with emotional outbursts, but by mid-year, Student refused such intervention. Ms. Smith’s attempts to problem-solve with Student would result in Student becoming emotionally upset and agitated. There were several incidents during April and May 2011, including two when Student either left or attempted to leave the building when agitated, verbally accused and berated staff, yelled and disrupted classes, and, on a couple of occasions, cried. (Smith, S-3)
30. Mr. Don Casella also testified in support of the School’s position. Mr. Casella is a Licensed, Independent Clinical Social Worker (LICSW) who provides consultant services to the SIP program. (Casella) During the period in question, these services consisted of weekly group meetings with SIP students to address issues such as anger management, as well as regular consultation with SIP staff. (Casella) Mr. Casella testified that he had begun working with Student in seventh grade, through the middle School SIP program, and had continued his contact with Student upon his entry into high school. Student’s attendance and participation in counseling groups was inconsistent. Student did not seek out Mr. Casella for support or assistance. During 2010-2011, Mr. Casella met individually with Student approximately three to five times. (Casella)
31. According to Mr. Casella, Student had continuous struggles with complying with the limits and expectations of a school setting, and with the authority of school staff. While many of Student’s issues during middle school were related to his diagnosis of ADHD (inattention, poor organization, and impulsivity), his behavioral and emotional struggles during 2010-2011 were unrelated to this diagnosis. Specifically, Mr. Casella described Student’s behavior as increasingly aggressive and volatile, as well as willful. He further stated that in contrast to prior years, when he was cooperative, Student seemed unaware of his responsibility for his misconduct and lacking in remorse. Mr. Casella also was concerned about Student’s affect, which he described as angry and tearful, with mood instability. (Casella, S-13)
32. Both Ms. Smith and Mr. Casella testified that Student needed to be placed in a substantially separate day program with a strong clinical and therapeutic component and clinical staff who were on-site on a daily basis to meet with students and consult with staff. (Smith, Casella)
33. Parent testified, on the other hand, that Student should not be removed from the SIP program, stating that he did not need a therapeutic setting and could be educated in the SIP program with an appropriate IEP. Parent stated that Student felt scapegoated in the SIP program, and that the staff wanted to get rid of him. He had come to the point of wanting to drop out of school. She observed that since Student had stopped attending school in June 2011, his mood and spirits had improved, and he had gotten a job. Parent further testified that at least some of the behavioral incidents were provoked by other students. She stated that according to Student, he did not receive the counseling supports listed on his IEP. Despite these negative interactions, however, Student still wanted to remain in the SIP program, in the high school. (Parent)
34. On or about March 3, 2011, the TEAM convened to address concerns about Student’s functioning in school, including “42 documented conduct reports.” (S-2) The School generated a proposal for an eight week extended evaluation to determine what strategies Student needed to learn to control his behavior in school, whether Student needed a more self-contained environment, and whether Student was capable of following the expectations of the high school. (S-2) The School initially proposed that the evaluation take place at the “Twain” program.3 (Tillotson) Parent rejected the proposed extended evaluation on March 7, 2011. (S-2)
35. On April 12, 2011, the parties participated in mediation with a BSEA mediator. The resultant mediation agreement provided that the School would conduct a comprehensive evaluation of Student, including a neuropsychological evaluation and functional behavioral assessment. Additionally, Ludlow agreed to expand the placement options for the March 2011 extended evaluation proposal to include the following facilities: Hampshire Educational Collaborative (HEC), Valley West School, Mill Pond School, Tri-County School, and Pace School. Parent agreed to visit these schools with Student, while continuing to reject the proposed extended evaluation. (S-4)
36. The Agreement further provided for some changes in Student’s IEP, as well as Ludlow’s conducting a neuropsychological evaluation and functional behavioral assessment of Student. (S-4)
37. On or about April 13, 2011, the School submitted referral packets to the above schools. Mill Pond and Tri-County invited Student and Parent to visit, but Parent declined to do so, leading to the School initiating the instant appeal. (S-6, 7, 8)
38. Meanwhile, on April 7, 2011, Parent obtained a diagnostic consultation for Student from Jodi Devine, LICSW, in order to “explore the origin(s) of his acting out in school and/or to assess whether he meets criteria for any comorbid diagnosis.” Ms. Devine’s evaluation consisted of interviews with Student and Parent. Ms. Devine’s report was not made available to the Parent until approximately May 23, and was not provided to the School until after the start of the hearing.
39. When interviewed, Student presented as cooperative and appropriate. He reported that he felt unjustly targeted by the school, and that his behaviors were blown out of proportion. Parent agreed with Student, and felt that for this reason, she did not agree with a change in placement. (S-13)
40. Parent further reported to Ms. Devine that Student was respectful and well-behaved at home and in the community. However, Student did have trouble with some basic skills such as remembering the months of the year in order, and required help with some daily routines. (S-13)
41. Ms. Devine concluded that she was unable to make a diagnosis in addition to previously-diagnosed ADHD, other than a “rule out” diagnosis of “Adjustment Disorder with Mixed Disturbances of Emotions and Conduct,” owing, in part, to the absence of recent psychoeducational testing. Ms. Devine’s impression was that Student’s behavioral issues were largely confined to school. She hypothesized that at least some of Student’s frustration in school were attributable to learning issues, and, although she would not be able to reach a firm conclusion without reviewing educational testing, Ms. Devine questioned Student’s “basic skills and level of cognitive and intellectual functioning.” Her opinion was that it would be premature to make behavioral or psychiatric diagnoses or change Student’s placement without a better grasp of his cognitive functioning and reasoning ability, as these would speak not only to the origins of his behavioral problems, but also to the type of intervention that would be effective. (S-13) Ms. Devine reiterated this opinion in her testimony, which she provided after having reviewed the report of Dr. Marc Caron, described below. (Devine)
42. Ms. Devine concluded that Student was caught up in a negative dynamic with school personnel. She recommended additional educational evaluation, and, meanwhile, to use non-punitive, positive interventions to help him de-escalate in school. Ms. Devine also recommended psychotherapy for Student. ( S-13).
43. On May 11 and 20, 2011, after the School had filed its hearing request, Student underwent a neuropsychological evaluation by Dr. Marc Caron. The School had initiated the referral for this evaluation. The evaluation consisted of formal assessments of cognitive and emotional functioning, as well as a review of certain records, consultation with school personnel, informal observation during the testing, an interview with Student, and a brief conversation with Parent. (Caron, S-10) The report was issued on or about May 23, 2011. (S-10)
44. To assess cognitive performance, Dr. Caron administered the WISC-IV, as well as various tests of Student’s processing speed, visuospatial construction, learning and memory, and executive functioning ability. On the WISC-IV, Student earned a full-scale score of 70, in the below average range. Student’s verbal comprehension and perceptual reasoning scores were similarly below average, while working memory and processing speed were low-average to below average. (S-10) Dr. Caron reported that these scores should be interpreted with caution, based on teacher reports that Student was able to do grade-level work. Nonetheless, Student consistently had difficulty with tests measuring language skills (such as verbal reasoning, concept formation, categorical reasoning and comprehension), as well as tasks to measure non-verbal, abstract reasoning skills. (S-10, Caron)
45. Student scored in the low-average to below average range on tests of processing speed and visual-spatial construction. He also scored in this range on tests of working memory, although this was due to problems with organizing the information to be remembered, rather than a memory deficit. (S-10) On the other hand, Student’s score on a nonverbal task of concept formation was within the average range, indicating “solid inductive reasoning when working with visual stimuli. (S-10)
46. Dr. Caron administered a sentence completion task as a “projective screening measure” to assess Student’s emotional functioning, and found that Student’s answers were “guarded and superficial,” at odds with Student’s reported volatility in school. As such, the projective test revealed little about Student’s emotional state. (S-10, Caron)
47. In addition to the formal testing referred to above, Dr. Caron reviewed attendance and conduct records from the SIP program and interviewed one of Student’s teachers, Mr. Lattanzio. Dr. Caron had a three to five minute conversation with Parent, during which he answered some questions posed by Parent. Dr. Caron discussed Student’s behavior with Mr. Lattanzio, but not with any other teacher or provider or with Parent. (Caron)
48. Dr. Caron testified that he felt Student needed a substantially separate therapeutic school setting as recommended by the School because he believed that Student needed more clinical support and monitoring than his current placement could provide. Dr. Caron attributed the apparent discrepancy between Student’s cognitive test scores and reported ability to do grade level work to emotional factors that were interfering with Student’s test performance, rather than to a learning disability or deficit. (Caron)
49. On May 16, 2011, a Functional Behavioral Assessment (FBA) was conducted by school psychologist Regine Momnie. Ms. Momnie is not a direct service provider for Student, but has observed him because her office is near the SIP classrooms, has occasionally intervened in behavioral incidents, and has consulted with staff. (Momnie)
50. The FBA targeted verbally aggressive behavior, although it also mentioned concerns with difficulty with social skills, picking on others, attention seeking, defiance, and non-compliance. The persons interviewed were Student, Parent, and regular and special education teachers. In sum, the FBA concluded that Student’s verbally aggressive behavior was a “function of a need for attention from his peers; a need to control adults; hurt feelings and a desire for revenge, lack of trust, and hostile feelings in addition to fear of failing to perform a task.” Student appeared “hypervigilant and sensitive to anything he perceives as a negative comment.” (S-9)
51. The FBA further concluded that Student lacked skills for appropriate substitute behavior, and/or was not being reinforced for appropriate behavior. (S-9) The FBA suggested numerous strategies for intervention, including positive reinforcement, and instruction in self-calming and coping skills. (S-9)
52. As stated above, the reports of Dr. Caron and Ms. Devine had been unavailable until the start of the hearing, and had not been considered by the TEAM; therefore, after the first day of hearing, the School was directed to convene a TEAM meeting to review these and any other outstanding evaluation reports.
53. The TEAM convened on June 6 and 9, 2011, considered the reports of Dr. Caron, Ms. Momnie, and Ms. Devine, as well as some educational testing. (This testing consisted of the KTEA-II,4 administered by Mr. Lattanzio. Student’s Reading Composite score was in the 14 th percentile, in the “below average” range. The Math Composite score was in the 16 th percentile, in the “average” range, and Written Expression was “below average,” at the 4 th percentile.) On June 15, 2011, Ludlow produced an IEP calling for placement in a private, therapeutic day school to address escalating behavioral concerns. (S-15)
54. Parent indicated at the TEAM meeting that she would not accept such a placement because she believed that Student needed a program focused on his learning needs. (S-15)
55. Although the most recently proposed IEP did not name a specific school, there is no dispute that Ludlow has considered referring Student to several different programs, including but not limited to: Hampshire Educational Collaborative, Tri-County, Valley West, Mill Pond, and Pace. All of these programs are located in Western Massachusetts. With the exception of HEC, which is a collaborative, all are approved, private special education schools intended to serve students with social, emotional, and behavioral issues. (Tillotson, Smith) According to Ms. Eve Tillotson, Special Education Supervisor from Ludlow, both Valley West and Mill Pond are private, therapeutic day schools serving students who have social-emotional needs, and also serve students with secondary diagnoses of autism and learning disabilities. Both programs have clinicians on staff. Three or four Ludlow students currently attend Valley West, which serves children from elementary through high school. (Tillotson)
56. Ms. Tillotson testified that she was not familiar with the HEC program, and had just learned about the Pace program during 2010-2011 because a Ludlow student attends there. (Tillotson)
57. Ms. Smith had taught at Tri-County for seven years at the high school level, with several of those years as a lead teacher, before she was employed by Ludlow. Ms. Smith testified that Tri-County serves students with emotional and behavioral disabilities. The school has a large number of clinical staff on site, and the clinical and teaching staff meet daily. The program is more therapeutically oriented than the SIP program. Ms. Smith believed that during times when Student struggles with self-regulation and becomes confrontational and uses inappropriate language that his profile is similar to that of students at Tri-County.
58. The record contains no further information about any of the programs under consideration.
59. As stated above, Parent testified that she did not want Student to attend a therapeutic school. She felt that he would not learn in such a setting, that peers would be inappropriate, and that the SIP program could provide him with FAPE if staff approached him more positively and addressed his learning needs. (Parent)
FINDINGS AND CONCLUSIONS
After reviewing the testimony and documents on the record, I conclude that the School has amply demonstrated that Student has exhibited a persistent pattern of non-compliant and disruptive behavior, together with periods of difficulty regulating his emotions, which have interfered with Student’s ability to make educational progress. It is clear that Student’s emotional and behavioral status should be evaluated further, as should his learning needs. Moreover, based on the record, the School has demonstrated that such evaluation should be completed in a substantially separate setting other than the Student’s current placement in the SIP program.
I further conclude, however, that the School has not met its burden of persuasion5 that Student requires a permanent change in placement to a substantially separate therapeutic day school to receive a free, appropriate public education, because the School has not shown that this type of placement is the least restrictive environment in which Student’s needs can be met. Additionally, while the School takes the position that Student’s troubling behavior stems from emotional difficulties, there is evidence in the record that Student also has significant cognitive and/or learning weaknesses that may contribute to Student’s struggles. Thus, even if Student is found to require a change in placement, the School has not demonstrated that the therapeutic placements it has proposed would be appropriate to address those weaknesses.
DISCUSSION
The record establishes that Student has a history of behavioral issues in school dating back to at least seventh grade. During seventh and eighth grade, both the documentary record and testimony of Mr. Casella, who knew Student during that time, show that Student had problems with attention, work completion, and impulsivity, related to his diagnosis of ADHD. Additionally, Student also had problems with being argumentative, mildly disruptive, or disrespectful in school, but at the middle school level, the SIP program appeared able to address these issues. The small amount of information in the record regarding Student’s first year at the high school (2009-2010) indicates that Student continued to have similar behavioral issues; however, there is no evidence that either party sought a change in placement at that time.
During the 2010-2011 school year, the situation deteriorated. The record establishes that Student showed an escalating pattern of rule violations and disruptive behaviors, accompanied by conflicts with peers and teachers and, on occasion, emotional upset and disproportionate reactions to relatively minor issues. While many of Student’s infractions were relatively minor (tardiness, skipping detention), they were frequent, and some were quite disruptive; e.g., verbal insults and threats to peers, rudeness to adults, and the accompanying emotional reactions (including crying and agitation) and difficulty in de-escalation were troubling. Additionally, as the year progressed, Student spent increasing amounts of time outside of the classroom, in “shut down,” and virtually stopped doing schoolwork. It was clear from the testimony of Ludlow staff (Ms. Smith, Ms. Momnie) that they felt that the SIP program did not have the resources to manage Student’s behavior.
On the other hand, there is no evidence that Student’s behavior was problematic outside of school. Parent reported to the private mental health consultant, Ms. Devine, that Student was respectful and cooperative at home, and this report was consistent with Ms. Devine’s observations. Ms. Devine’s report is undisputed, and, in fact, Ludlow has not asserted that Student has emotional or behavioral problems at home or in the community.
Additionally, there is persuasive evidence on the record to suggest that Student has cognitive or learning challenges requiring further investigation. Student achieved a significantly sub-average full scale IQ score on the WISC-IV administered by Dr. Caron. While I credit the testimony of Dr. Caron and Ms. Momnie that this probably underestimates Student’s actual cognitive abilities and functioning, I also note that Student consistently struggled with most of the tasks on both the WISC-IV as well as with other cognitive assessments given as part of the neuropsychological evaluation. Additionally, I note that Ms. Devine questioned whether Student’s difficulties might be partially attributable to learning or cognitive challenges, and, in fact, was hesitant to assign any new, firm mental health diagnosis to Student without more information about Student’s cognitive functioning. The brief screening that Dr. Caron conducted of Student’s emotional status yielded virtually no information because Student’s responses were guarded and superficial. Finally, there is no evidence in the record that Student has any firm mental health diagnosis other than ADHD.6
Based on the foregoing, I find that it would be premature to conclude that Student’s placement should be changed to a substantially separate therapeutic day school, designed primarily for students with emotional and behavioral problems. Without a comprehensive evaluation of both Student’s emotional/behavioral status, his cognitive and learning needs, and the contributions of both factors to Student’s difficulties in school, it is not possible to determine the type of intervention that Student requires, the appropriate setting, the relative emphasis that should be placed on learning and clinical services, and the level of complexity that Student is capable of understanding.
Pursuant to state regulations,7 schools may conduct an extended evaluation of an eligible student “[I]f the Team finds the evaluation information insufficient to develop an IEP…”, provided the Parent (or adult student) consents to such evaluation. 603 CMR 28.05(2)(b). An extended evaluation may not exceed eight school weeks, and is not considered a placement. 603 CMR 28.05(b)(4), (5). Before starting an extended evaluation, the Team must “document its findings,” and determine how much time is needed to complete the extended evaluation, as well as types of information needed to develop an IEP. The Team may meet periodically during the extended evaluation period and must meet “promptly” once the evaluation is complete to develop or complete an IEP for the student. 603 CMR 28.05(2)(b)(3). Clearly, Student’s situation is one that the foregoing provision is designed to address. It is only after this process is completed that the TEAM will be in a position to determine an appropriate IEP and placement for Student. .
CONCLUSION
The evidence shows that Student needs additional evaluation to determine his current needs and develop appropriate services. The evidence also shows that Student’s profile and history are complex enough that an extended evaluation as described in 603 CMR 28.05(2)(b) is appropriate for this purpose. The scope of this evaluation was set forth in the Conclusion and Order issued on August 5, 2011, which is hereby incorporated in its entirety, and attached as Appendix A to this Decision.
By the Hearing Officer:
____________________ _____________________________
Sara Berman
1
The record does not clearly establish Student’s grade level during 2010-2011. In her opening statement, counsel for Ludlow indicated that Student was repeating ninth grade in 2010-2011. Some documents in the record refer to Student as a ninth grader, others describe him as a tenth grader. Regardless of grade designation, it is undisputed that 2009-2010 was Student’s first year at Ludlow High School, and 2010-2011 was his second year.
2
This IEP applied to eighth grade, but referred back to seventh grade when describing Student’s “current performance level.”
3
The record contains no further information about “Twain.”
4
Kaufman Test of Educational Achievement, Second Edition.
5
As the party seeking a change in the status quo, the School has the burden of showing, by a preponderance of the evidence, that the current program is inappropriate and the proposed program is appropriate. Schaffer v. Weast, et al , 126 S.Ct. 528, 441 IDELR 150 (2005)
6
While I credit the test scores obtained by Dr. Caron, I do not credit his conclusion that Student needs to be in a therapeutic setting. Dr. Caron did not review any prior testing of Student, did not observe him in any setting, reviewed no school records other than current attendance and disciplinary records, and spoke to Parent for three to five minutes.
7
The Federal statute and regulations to not address extended evaluations.