Norwood Public Schools – BSEA #03-0391
COMMONWEALTH OF MASSACHUSETTS
SPECIAL EDUCATION APPEALS
In Re: Norwood Public Schools
BSEA # 03-03911
This decision is issued pursuant to 20 USC 1400 et seq . (Individuals with Disabilities Education Act), 29 USC 794 (Section 504 of the Rehabilitation Act), MGL chs. 30A (state Administrative Procedure Act) and 71B (state special education law), and the regulations promulgated under said statutes.
A hearing was held on March 2, 5 and 10, 2004 in Malden, MA before William Crane, Hearing Officer. Those present for all or part of the proceedings (or who testified by telephone) were:
Anita Pliner Neuropsychologist
Helene Pniewski Psychiatrist (testified by telephone)
Marlene Bradbury Learning Center Teacher, Norwood Public Schools
Jason Andalo Teacher, Norwood Public Schools
Alice Axelrod School Psychologist, Norwood Public Schools
George Fahey School Adjustment Counselor, Norwood Public Schools
Albert Fuccillo Dean of Students for Class of 2004 & teacher, Norwood Public Schools
Helen Wyche Director of Student Support Services, Norwood Public Schools
Jo Feldman Coordinator of Special Education Services, Norwood Public Schools
Tim Sindelar Attorney for Student
Tim Norris Attorney for Norwood Public Schools
Daniel Brown Attorney for Norwood Public Schools
Steve Lilly-Weber BSEA Mediator (observing)
The official record of the hearing consists of documents submitted by the Student and marked as exhibits P-1 through P-39; documents submitted by the Norwood Public Schools (hereafter, Norwood) and marked as exhibits S-1 through S-27; and approximately two and a half days of recorded oral testimony and argument. As agreed by the parties, written closing arguments were due on April 2, 2004, and the record closed on that date.
The issue to be decided is whether the Student is currently eligible for special education and related services.2
1. Student is a nineteen year old high school senior (date of birth 12/10/84), living with his family in Norwood, Massachusetts. Student has not attended classes at the high school since May 2003. Currently, Student has been receiving only tutorial services. Testimony of Father.
2. Student began receiving special education services from Norwood in the fall of 1990 when he was identified as eligible for special education in kindergarten. Student was found to have difficulty with sentence memory, visual motor skills and fine motor skills. Student’s IEP, which was accepted by his Father, called for two thirty-minute sessions per week in the Learning Center and two thirty-minute sessions per week of small group speech-language therapy. Exhibits P-17, P-27. As explained below, Student continued to be eligible for and receive special education services until April 1, 2003.
3. During kindergarten in January 1991, a psychological evaluation was conducted by Norwood which found Student to be of average intelligence. The evaluator reported that Student presented as anxious and resistant to testing, but with encouragement he was able to answer questions and complete the testing. The evaluator concluded that Student appears to require a non-threatening, individualized setting where he is encouraged to express himself, accept challenges and focus on the task at hand. Exhibit P-26.
4. The IEP for 1/6/01 to 1/6/02 called for four sixty-minute sessions in the Learning Center for academic support and organizational help as the only special education or related services to be provided Student. This IEP noted that Student needs to be removed from the general education classroom because he “needs to be monitored for major academic subjects due to a learning disability that affects his organizational skills and study skills.” The IEP further explained, in response to the inquiry as to how his disability affects his progress in curriculum areas, Student “has difficulty organizing his work and studying effectively for tests and quizzes.” The IEP was accepted by Student’s Mother. Exhibits S-8, P-4 (pages 34, 38, 39, 42 of Student’s exhibit book).
5. The IEP for 2/8/02 to 2/8/03 was similar to the previous IEP although it reduced services to three sixty-minute sessions in the Learning Center. The IEP was accepted by Student’s Father. Exhibits S-7, P-3. This was the final IEP proposed by the School District.
6. Norwood conducted a psychological evaluation and educational testing of Student in March 2003. A Team meeting was held on April 1, 2003, in which Norwood determined that Student does not have a disability and therefore is no longer eligible for special education services. Exhibits S-1, S-2, P-2, P-18, P-19.
1. Student’s father ( Father ) testified that he lives in Norwood, Massachusetts, with his two sons (one of whom is Student) and his spouse. Father described Student as shy until you get to know him, and then he is “wide-open” – for example, when he is with someone he knows and is talking about what he is interested in, he is “full of it”. He explained that he agreed “100%” with Dr. Pniewski’s description of his son, not with respect to the diagnostic labels, but with respect to how Student interacts with others.
2. Father testified that during elementary school, at first Student had no friends, but this has slowly changed so that now he has many friends who are on the football team and has a girlfriend who is very similar to Student. Father also noted that his son has gotten along well with several teachers at the high school.
3. Father testified that beginning in Student’s sophomore year in high school, he began having discipline problems; and in his junior year, discipline problems increased substantially, with Student having many behavior incidents and being suspended for more than thirty days, although there was never a Team meeting to address these issues.
4. Father testified that early in November 2002 (his son’s junior year), Student was not attending his special education program at the Learning Center, and a meeting with Mr. Connolly was held on November 13, 2002 to discuss this. Father explained that, as a result, he signed a paper (exhibit P-31) giving permission for Student to drop the Learning Center so that Student would not continue to be disciplined for not attending. Father further explained that after Student turned 18 years old, Student also signed a paper (exhibit P-30) dropping the Learning Center from his schedule.
5. Father testified that during Student’s junior year, Student continued with the Alternative Program until he had an incident with his teacher, resulting in Student’s leaving school for the remainder of the year, and receiving only tutoring at home. Father explained that during the summer after his junior year, arrangements were made for Student to attend the Massapoag School, a program of the CHARMS collaborative, in the fall; however, after the first week or so, Student was allegedly found at school to be carrying a large quantity of marijuana and a large amount of cash, and he was expelled from school. Father testified that criminal charges were also filed, and Student was given a two-year suspended sentence, was confined to home (except for education and work) for six months, and has been required to submit to random drug testing which has consistently showed Student to be drug-free.
6. Father testified that Student has been employed at a number of jobs but in each of them (except his current job) Student at some point stopped going to work. Father explained that Student is currently employed at a car wash for 20 to 30 hours per week, with no apparent problems or difficulties.
7. Father testified that during the spring of Student’s junior year, Father sought professional help for his son, first having his son see a psychologist for 4 or 5 visits. Father explained that because the psychologist apparently was not able to make progress with his son, the psychologist suggested that the sessions terminate and that Student be referred for medication, which led eventually to Father’s engaging a psychiatrist, Dr. Pniewski, for this purpose.
8. Father testified that he believes his son has a problem with motivation; and if his son does not believe in a rule, it is difficult to get him to go along with it.
9. In his testimony, Father expressed significant concern about his son’s inability to plan, manage and organize his own life independently. He explained that it is only when someone works with his son that he is able to complete a task – otherwise, his son has little ability to follow through successfully. Father similarly discussed his son’s apparent inability to complete multiple-step tasks – the lack of ability to take one step that is necessary before a second step can be completed, or to complete a second or third step after the first step has been done. Father noted, for example, that his son was able to obtain a $1,000 money order necessary for his probation, but the money order has remained on his son’s bureau for weeks – Father explained that his son has not been able to focus and organize sufficiently to put the money order into an envelope and mail the envelope.
10. Father testified regarding additional examples of his son’s inability to plan ahead and to organize and manage his own life by accomplishing rudimentary tasks when they need to be done – his son is not able to buy clothes when he needs clothes, not able to buy food when he needs food, not able to pay bills when he needs to pay bills. Father explained that when asked what he is going to do today, his son typically answers “it depends” which is literally true – his son simply responds to what is happening in the present without any apparent ability to plan ahead or complete sequential tasks without someone working with him.
11. A neuropsychological evaluation was performed by Anita Pliner , PhD, JD, on November 5, 2003, November 12, 2003 and December 2, 2003. Exhibit P-1. Dr. Pliner’s resume indicates that she received her JD in 1981 and her PhD in psychology in 1996, and has been working as a neuropsychologist in private practice since 1997 and at the North Shore Children’s Hospital since 1995. Exhibit P-37 (resume). Dr. Pliner testified that during this time, she has completed over 1,000 neuropsychological evaluations. She explained that it is not unusual for her to evaluate a nineteen-year-old student with average intelligence, and that she has seen a number of adults or young adults with a presentation similar to that of Student. Dr. Pliner noted that as part of her evaluation, she reviewed past evaluations of Student (including Dr. Axelrod’s 2003 evaluation), several IEPs, and all of the exhibits in this case.
12. Dr. Pliner testified that at the time of her evaluation of Student, he was taking the medication Risperdal, which can cause fatigue as a side effect but she stated that she did not notice that Student was fatigued at the times when she evaluated him, nor did she notice any other conditions or problems that would invalidate the results of her neuropsychological evaluation of Student.
13. Dr. Pliner testified and her report indicates that Student cooperated with the testing but needed a significant amount of encouragement, prompting and cues to answer questions. She found that when, during the test, Student did not answer a question, it was because he was not able to answer, rather than his being unwilling to answer. She concluded that the results of her test accurately reflect Student’s abilities, including his ability to demonstrate his skills in a one-on-one setting.
14. Dr. Pliner testified that her review of previous testing reports (including descriptions of Student’s behavior) and her observation of Student (including his use of language) raised a question in her mind regarding Student’s executive functioning, including his ability to formulate and organize language. She explained that she therefore focused her testing on Student’s executive functioning skills in order to explore whether and to what extent he has a deficit in this area. She noted that during her testing of Student (as well as at other times), she observed that he was quiet and slow (especially with language-based tasks), had a rather flat affect, responded but with reticence, gave brief answers, needed a lot of encouragement, and required Dr. Pliner to continue to probe to determine the limits of Student’s ability to respond. She noticed also that Student had a low tolerance for frustration.
15. Dr. Pliner testified that executive functioning skills pertain to one’s ability to execute or carry out a task – for example, to plan, initiate, organize steps, sustain attention, monitor one’s performance, and inhibit behavior that interferes with execution of a task. She noted that a deficit in this area negatively impacts the ability to plan, organize and use one’s cognitive skills, and it slows the cognitive functioning because it will take longer to do a task (for example, answering a question or retrieving information) if the brain has difficulty organizing the information. She also noted that an executive functioning disorder has the same characteristics as an attention deficit disorder, but that an executive functioning disorder is more comprehensive and more useful as a diagnosis.
16. Dr. Pliner testified that she administered certain subtests of the Stanford Binet Intelligence Scale (4 th Ed.) which focus on the ability to work with language in a relatively complex manner. She found, through this testing, that Student had significant difficulty responding (he was well below age-equivalent performance levels) when working with lengthier, more complex language. She noted that, as compared to the Wechsler Adult Intelligence Scale (3 rd Ed.) administered by Dr. Axelrod (exhibits S-1, P-18), the Stanford Binet subtests use more language testing and require manipulating more information.
17. Dr. Pliner testified that she administered selected subtests of the Wechsler Memory Scale to determine how well Student could learn and recall relatively complex language information. She found that although Student remembered a significant amount of information, he remembered the information out of sequence. She explained that this indicates that Student has a significant weakness in language and would have difficulty following sequences in school – for example, if he were to receive instructions in school and later retrieves the information, it may be out of sequence so that he would not do what needs to be done in the correct order.
18. Dr. Pliner testified that she administered the Wisconsin Card Sorting Test to determine how well Student can generate strategies and then shift strategies when a strategy is not working. She found that Student demonstrated highly significant problems with this test – he had difficulty generating problem-solving strategies and it was very hard for him to shift from one strategy (that was not working) to another strategy.
19. Dr. Pliner testified that she administered the California Verbal Learning Test (II) from which she determined that it was exceedingly difficult for Student to generate strategies necessary to answer the test questions. Dr. Pliner explained that Student was not able to relate new information to information that he had already learned, demonstrating a significant difficulty with retrieval and synthesis. She noted that with cues, Student was able to remember and do well. Dr. Pliner concluded that Student is able to learn information, but that the information is not organized within his brain in a coherent way, with the result that Student has difficulty accessing it; this helps explain Student’s slowness in answering questions and indicates that Student will have difficulty performing well in less structured settings.
20. Dr. Pliner testified that she asked Student to write single sentences, which he was able to do without difficulty. She found, however, that when asked to write a letter, Student demonstrated significant difficulties with organization as well as spelling and punctuation. She explained that this again demonstrated that when asked to perform a language task involving greater complexity, he has difficulty retrieving and organizing information and this, in turn, negatively impacts upon his ability to spell and use punctuation correctly.
21. Dr. Pliner testified that she administered the Nelson-Denny Reading Test which demonstrated that Student was able to recall information, but he missed many of the inferential ideas, again suggesting that Student is able to recall a significant amount of information but cannot organize the information in order to draw inferences from it.
22. Dr. Pliner testified that she administered the Wechsler Individual Achievement Test (2 nd ed.) in order to determine Student’s achievement levels, which can then be compared to his cognitive abilities as determined by Dr. Axelrod in her administration of the WAIS-III. Dr. Pliner found Student’s achievement levels to be as follows: single word reading was at the 14 th percentile (as compared to other students who are seniors in high school), spelling was at the 18 th percentile (as compared to other students who are seniors in high school), and numerical operations were at the 1 st percentile (as compared to other students who are seniors in high school). Dr. Pliner noted, in contrast, Student’s non-verbal math reasoning is “fine”. Dr. Pliner testified that Student’s passing the math portions of the MCAS exam is not inconsistent with her findings, since the test says nothing about Student’s discrepancy between his aptitude and achievement.
23. Dr. Pliner concluded in her testimony (and her written report similarly reflects) that Student has an executive functioning disability, characterized as a “language based and executive learning disability” which “leaves his comprehension and execution of many school type tasks problematic.” Dr. Pliner explained in her testimony that an executive functioning disorder reflects an impairment of the nervous system in that the orbital prefrontal part of the brain and its connection to other parts of his brain are impaired.
24. Dr. Pliner stated in her report that Student’s executive functioning disability results in Student’s having significant difficulty with organizing language and has significantly reduced math organization and retrieval skills. She explained in her testimony that this deficit limits Student’s ability to (1) execute any complex task, (2) perform math computations and (3) formulate lengthier, more complex language.
25. Dr. Pliner testified that, as a result of Student’s executive functioning disability, there is a significant discrepancy between Student’s performance and ability in written expression, reading comprehension and math calculation. She found that Student is performing most significantly below his level of ability in math computation which is more than two standard deviations below what would be considered his ability level as reflected in his IQ scores.
26. Dr. Pliner testified that, because of his executive functioning deficits, Student would not be able to “hold his own” in a mainstreamed educational environment. She opined that specialized instruction is necessary to help Student with written expression and math computation, and generally to help him learn how to follow instructions and complete tasks. She explained that in order to address Student’s deficits, he requires specialized instruction that will teach him strategies to allow him to compensate for his deficiencies – for example, to chunk information into groups or categories, to learn organizational strategies for writing, and to learn ways of relating new information to what he has previously learned. She noted that these skills are essential not only to make significant educational progress at the high school level but also to be able to address problems in everyday life. She opined that Student’s executive functioning deficit has gone untreated for so long, that it will likely require intensive instruction to address it. Finally, she noted that once Student has learned to compensate for his executive functioning deficits, he would likely be able to be taught within a mainstreamed setting with significant supports, but until then, he should receive instruction in a separate setting with small classes or 1:1 instruction.
27. Dr. Pliner testified that there is also an emotional component to Student’s difficulties. She explained that as a result of the difficulties and frustrations which occur as a result of his executive functioning deficit, Student feels that he is not in control and he can become overwhelmed by demands that are placed upon him, which can result in his acting out. She recommended that Student be provided counseling or therapy services to address these feelings.
28. During the hearing, Dr. Pliner was asked to review a part of Dr. Axelrod’s written report (exhibits S-1, P-18) which begins: “In working with [Student] . . .” and is quoted below in par. 58 as part of the summary of Dr. Axelrod’s report (see page 173 of Parents’ exhibit book for the quoted language). The quoted language reflects Dr. Axelrod’s concern that Student has low motivation for school work, which in turn has negatively impacted upon his educational performance. When asked for her response, Dr. Pliner stated that what Dr. Axelrod has observed is consistent with someone with a significant leaning disability who, as a result, has been able to achieve little or no success in academics. She explained that, to Student, the world seems complex and overwhelming; and when he meets with continuing failure, he becomes less motivated and responds in the manner that Dr. Axelrod has observed.
29. A letter from Helene Pniewski , MD, to Tim Sindelar (Student’s attorney), dated February 4, 2004, indicates that Dr. Pniewski has seen Student on four occasions. Dr. Pniewski testified (by telephone) that she has now seen Student five times – an initial evaluation in the fall of 2003 and four follow-up visits; she is currently providing Student with psychopharmacological follow-up services. Exhibit P-36.
30. Dr. Pniewski testified and her resume indicates that she has been a child psychiatrist for fifteen years and before that, a developmental pediatrician. She explained that she has twenty-four years of experience in the assessment and treatment of children with a wide range of disabilities, including learning disabilities, attention deficit disorder and pervasive developmental disability (PDD).
31. Dr. Pniewski testified and her letter indicates that she began treating Student with Risperdal to address his anger and social difficulties, but after he gained weight as a side effect of this medication, she changed him to a similar medication, Abilify, for mood and anger stabilization. She explained that at the time Dr. Pliner performed her neuropsychological evaluation of Student in November and early December 2003, Student would have been on Risperdal. Dr. Pniewski stated that Student did not complain of any cognitive side effects from Risperdal, nor does she believe that there would have been any.
32. Dr. Pniewski testified that in addition to her seeing Student five times, she has reviewed all of the documents in evidence in this dispute, including evaluations, IEPs and other school records. She also explained that she had Student’s mother fill out a questionnaire.
33. In her letter, Dr. Pniewski observed that she has consistently found Student to be inappropriate in his social interactions – that is, “he has impassive facial expression, gives only short and brusque answers, sometimes misinterprets language, yet he can be quite enthusiastic discussing certain topics of interest to himself (car detailing.)” The letter concludes that this presentation “is frequently seen in individuals with some form of Pervasive Developmental Disorder”. Exhibit P-36.
34. In her telephonic testimony, Dr. Pniewski opined that Student has a condition along the PDD spectrum. She explained that she was struck by his passivity in social interactions, but on topics of interest, he engaged her in great depth and detail. She noted that Student does not appropriately understand or interpret social interactions. She explained that PDD has a neurological basis, and one would therefore expect to observe this disability early in Student’s life.
35. Dr. Pniewski testified that she would expect that Student’s PDD would affect his education to a marked degree and that to achieve success in a regular education curriculum, Student would need specialized services to address this social learning disability.
36. Dr. Pniewski’s letter further finds that Student has “features of depression and intermittent explosive disorder, possibly a mood disorder.” In her letter, Dr. Pniewski also addresses the possibility that Student has an emotional impairment:
The above features indicate that [Student] presents with an emotional impairment. He has been unable to build or maintain satisfactory interpersonal relationships with peers and teachers; he shows inappropriate types of behavior or feelings under normal circumstances; and he has a general pervasive mood of unhappiness or depression. These difficulties have prevented him from being able to benefit from his educational experiences.
37. Dr. Pniewski testified, however, that she believes Student to have only mild elements of depression. She explained that Student’s depression is likely the result of other difficulties and would not be considered a primary diagnosis. She also explained that she had not spoken to any of Student’s teachers, nor had she observed Student in any settings other than her office.
38. A psychological evaluation by Alice Axelrod , PsyD, was performed on several days, one of which was March 3, 2003. Dr. Axelrod has been employed by Norwood as a psychologist since 1976, and is currently (or has been) a consultant to the Anti-Defamation League (Boston, MA), the Wellness Community (Newton, MA), and the Multi-Cultural Institute for Change (Regis College, Weston, MA). Exhibits S-1, S-26 (resume), P-18.
39. Dr. Axelrod testified that although she is not a neuropsychologist, she has a significant amount of training in neuropsychology, including course work and in-service training and she has reviewed neuropsychological reports (20 to 30 per year) as part of her responsibilities as a school psychologist.
40. Dr. Axelrod testified that her primary responsibility as school psychologist is to perform assessments of students (approximately 150 per year) and then to discuss this information with others concerned about the particular student – for example, at a Team meeting. She stated that as part of this process, she reviews student records and interviews students. She noted that she has also done individual counseling and group work. She explained that she has a significant amount of experience with students with executive functioning deficits, emotional impairments and PDD.
41. Dr. Axelrod testified that as part of her performing a psychological assessment of Student (which included formal testing and an interview), she informally observed him in his alternative classroom and reviewed his records, and (subsequent to her psychological assessment) she conducted one part of a functional behavior assessment of Student and participated in a discussion of Student during a Team meeting.
42. Dr. Axelrod testified that (and as reflected in her report) her psychological assessment included administration of the Wechsler Adult Intelligence Scale – Third Edition (WAIS), the Bender Gestalt Visual Motor Task and the Rey Osterrieth Complex Figure design. According to the WAIS, Student’s full scale IQ was 99, which indicated that Student’s general cognitive ability is in the average range of intellectual functioning (placing him at the 47 th percentile). Student’s full scale score was composed of a Verbal IQ score of 96 (placing him at the 39 th percentile) and a Performance IQ score of 102 (placing him at the 55 th percentile). Exhibits S-1, P-18.
43. Dr. Axelrod testified that an executive functioning disorder is a neurodevelopmental disorder, and pertains to different parts of the brain and how those parts relate to each other. She explained that one would expect to see executive functioning deficits early in a student’s development and across different areas of functioning.
44. Dr. Axelrod testified that the administration of the WAIS to Student found no significant executive functioning deficits. She explained that WAIS subtests look at Student’s quality of problem solving. She stated that the testing showed that Student was able to exercise self-reflection – for example, reflect upon his answers during the testing. She explained that a hallmark of a student with executive functioning deficits is an inability to reflect in this manner. However, Dr. Axelrod later agreed during cross-examination that Student does not have a lot of insight into himself.
45. Dr. Axelrod testified that during her testing of Student, he was able to move easily from one subtest to another, demonstrated good strategies for problem-solving and worked consistently within the time-limits. She explained that a student with executive functioning deficits, in contrast, would typically have difficulty regulating his behavior in this manner. She noted, for example, that students with this deficit might try something and then give up, or might keep working past the time limits of the test, or would take a random approach to problem-solving.
46. Dr. Axelrod’s report and her testimony indicated that there was no particularly large degree of inter-test scatter, nor any significant intra-test scatter among the 14 subtests. The report concludes that Student “presents with a rather evenly developed profile of strengths and weaknesses, with somewhat better developed skill (and certainly better inclination) in the completion of non-verbal tasks.” She explained in her testimony that even in those subtests which measure ability to problem-solve, maintain attention and develop strategies, Student did well. She noted, for example, that the letter-number sequencing subtest required Student to re-sequence first in numerical and then in alphabetical order, requiring Student to memorize, order information and then respond. She stated that there is a high correlation between this subtest and executive functioning deficits, and Student scored in the average range (standard score of 11).
47. Similarly, Dr. Axelrod testified that the vocabulary subtest required Student to describe a word, requiring him to retrieve and give information back to the tester. She stated that students with executive functioning deficits are typically not able to do this, and Student scored in the average range (standard score of 9). Dr. Axelrod also noted that the block design and matrix reasoning subtests required problem solving at an increasingly difficult level, and Student scored in the average range (standard scores of 11 and 12, respectively). Exhibits S-1, P-18.
48. Dr. Axelrod testified that the similarities subtest indicated that Student tends to think in concrete terms and may have difficulty making connections between abstract information, but he nevertheless scored in the average range (standard score of 9). She also noted that the picture completion subtest measured Student’s ability to read verbal cues and interactions between people; Student scored in the average range (standard score of 9).
49. Dr. Axelrod testified that the Bender Gestalt Visual Motor Task and Rey Osterrieth Complex Figure design tests required Student to copy designs, requiring the development and implementation of a plan. She stated that the Rey Osterrieth test, in particular, is a good indication of whether a student has an executive functioning disability. She explained that Student performed well on both tests.
50. Dr. Axelrod testified that a characteristic of students with an executive functioning disability is impulsivity since the student typically is not able to plan well and his behavior tends not to be inhibited, with the result that the student tends to act before thinking about what he is going to do, and that impulsivity would show up within different environments. She explained that from her knowledge of Student (as reported to her by others), he does not exhibit this impulsivity. She explained that Student appears to be aware of the rules, can verbalize the rules, but then decides not to follow them – for example, his decisions to visit with his friends in parts of the school to which he was forbidden to go and his decisions not to attend the Learning Center.
51. Dr. Axelrod testified that in listening to others (for example, Student’s teachers and guidance counselor) talk about Student (for example, at a Team meeting), she has not heard any data that would confirm an executive functioning disability. She noted that if Student had such a disability, it would likely show up in ways that would be observed by these people who are working with Student in the school setting.
52. Dr. Axelrod testified that executive functioning refers to a set of skills which includes formulating goals, planning, controlling attention, inhibiting impulses, regulating/controlling behavior, self-reflection, interacting effectively in social situations, and understanding interpersonal and social situations. She explained that students with an executive functioning disability often give up early. She stated that typically a student with an executive functioning disability would have deficits across domains, but that a student with this disability could show deficits in certain executive functioning areas but not in others. She noted that there are no definitive criteria for diagnosis of an executive functioning disability.
53. Dr. Axelrod testified that, in her opinion, Student “does not demonstrate the full array of characteristics that someone with an executive functioning deficit would have” although he does have difficulty with tasks that are more complex or more abstract.
54. Dr. Axelrod agreed, in her testimony, that Dr. Pliner administered to Student at least seven tests which would provide information about his executive functioning.
55. Dr. Axelrod testified that from her review of other testing, Student does not appear to have a significant discrepancy between ability and performance in reading, writing or math, although he does have a relative weakness in math. She also noted that Student passed the math MCAS, demonstrating that he has reached at least the minimum standards in this area.
56. Dr. Axelrod testified that, in her opinion, Student does not have a pervasive developmental disability (PDD). She explained that the two principal characteristics of PDD are that (1) a student cannot engage in reciprocal, mutually rewarding conversations and friendships and (2) the student often has stereotypical interests about which the student obsesses and has a great deal of knowledge. On the basis of what others have reported and Student’s conduct during her testing, Dr. Axelrod believes that Student has been able to develop friendships, can engage in conversation, can talk about his ideas and has a broad range of interests, all indicating that he does not meet the essential criteria for PDD.
57. Dr. Axelrod’s report reflects the following observations during her testing: Student “appeared to benefit from clear and concise expectations for performance and seems to fare best with structure. . . . When frustrated by challenging items, however, he was apt to give up quickly and cease his effort. Often, items of difficulty were met with attempts to withdraw from the task. If he did not easily know an appropriate response or solution, he was apt to shut down. Yet, in this individualized setting, he was amenable to examiner encouragement and persisted in his efforts, when direct explanations for maintaining effort were provided.” Exhibits S-1, P-18 (2 nd page). Similarly, in her summary to her report, Dr. Axelrod wrote: “He appears to fare best with structure, clarity and consistency – with opportunities to maintain some degree of personal control and empowerment.” Id. (7 th page).
58. Dr. Axelrod opined in her testimony (based on what she has observed, read and heard about Student) that when Student has a specific goal, when there is pressure to perform or when he is otherwise motivated to perform, he does well. She concluded that Student’s performance depends on motivation, not ability. Dr. Axelrod addressed this issue further in her written report as follows:
In working with [Student], it was apparent that his lack of internalized drive/motivation for active intellectual problem solving might interfere with his optimal academic functioning. Given the extent of examiner intervention that was necessary to ensure his optimal effort, it would appear as though he has not yet fully internalized a sense of commitment to academic excellence. He does not appear to be currently motivated to expend much energy for schoolwork or studying. Furthermore, he does not appear to be the type of young man who is wholly compliant with authorities and/or rules of an institution. In fact, as [Student] himself indicated: “I see no point to the rules”; “Rules don’t make sense”; “I just want to do what I want to do when I want to do it – I don’t need people telling me what to do”.
Exhibits S-1, P-18 (page 173 of Student’s exhibit book).
59. Dr. Axelrod testified that in her opinion, Student’s educational problems are attributable to the following: (1) Student does find school work difficult, (2) he has not developed good academic habits, and (3) Student has “developed to the point” that he does not have good motivation. Dr. Axelrod acknowledged on cross-examination that in general, it is easy to confuse a lack of motivation with an inability to initiate something.
60. Marlene Bradbury testified that she has been employed by Norwood as a special education teacher for 28 years, and has been a Learning Center teacher at the Norwood High School since 1989. She explained that her responsibilities include academic testing; she has administered close to 1,000 such tests. She noted that she is certified in special education at all levels.
61. Ms. Bradbury testified that she began working with Student at the beginning of his junior year, as he was assigned to attend the Learning Center (a special education service) to receive academic support. She explained that Student showed up for about half of his scheduled sessions in the Learning Center during the first term; then he was signed out of the Learning Center by Father early in the second term. She believes that Student did not want to attend the Learning Center and that he was adept at coming up with strategies to avoid coming to the Learning Center. Ms. Bradbury explained that when Student did attend the Learning Center, it was very frustrating for Ms. Bradbury since Student would sometimes ignore her, read the newspaper or walk around the room. Nevertheless, she explained that she believes that she had a good relationship with Student on a personal level.
62. Ms. Bradbury testified that the academic support to Student through the Learning Center provided minimal assistance to him. She believes that Student is able to do his academic work, that the only issue is whether Student chooses to do the work, and that her involvement with Student through the Learning Center did not impact his willingness to do the work.
63. Ms. Bradbury testified that she found Student not to be impulsive, and concluded that most of his actions were well thought out. She believes that he is able to attend, plan and problem solve, and does not have the symptoms which she has typically observed in other students who have an executive functioning deficit.
64. Ms. Bradbury testified that she administered the Woodcock Johnson – III Achievement Test and the Gates-MacGinitie Reading Test – Level 10/12, Form S in March 2003. She noted that on certain tests Student appeared to be cooperative and gave full effort, but in other areas he “fought” her and did not cooperate sufficiently to provide meaningful test data. She explained that those areas in which he cooperated fully and gave 100 % effort were the tests where Student was able to perform well (for example, the academic knowledge test) and he seemed to enjoy showing what he knew or were in areas that did not appear to be academic (for example, a story recall test); but that in those areas of particular difficulty (for example, math calculation), he essentially refused to cooperate with the testing. As a result, Ms. Bradbury discounted the test scores regarding reading fluency, math calculation, math fluency, and broad math, but she believes that the other test scores are valid, including applied problems (which measures skill in analyzing and solving practical problems in mathematics) where Student gave “good” effort.
65. Ms. Bradbury testified that Student gave equally good effort on the story recall test (he scored in the 79 th percentile) and the story recall delayed test (he scored in the 21 st percentile). She explained that the second test was similar to the first test except that it required Student to remember and use information that he had received about an hour earlier.
66. Ms. Bradbury testified that Student passed the math MCAS while using an accommodation of a calculator.
67. Ms. Bradbury testified regarding Ms. Diskin’s evaluation (exhibit S-4) which found that Student had a differential between ability and performance in Broad Math of more than two standard deviations. She agreed that this was significant in that any differential of more than 1.5 standard deviations normally means that a student has a significant deficit and needs additional services in this area. However, she opined that Student demonstrated through his regular education math courses at the high school that he is able to do his math work satisfactorily without additional services.
68. Jason Andalo testified that he is currently in his 5 th year of employment by Norwood as a regular education teacher. He explained that he was Student’s sophomore social studies teacher. He recalled that during the first term, Student performed well academically and his behavior was good – at this time, Student was on the football team and the football coach monitored the academic progress of all of his players (failure of two courses would result in not being able to continue on the football team).
69. Mr. Andalo testified that during the second term, once there was no longer any need to do well academically in order to continue playing football, Student’s academic effort, grades and behavior deteriorated. He explained that Student was aware of the rules and the consequences for violating a rule and for the most part was able to control his behavior.
70. Mr. Andalo testified that Student was able to participate appropriately in classroom discussions, as well as in discussions with Mr. Andalo. Mr. Andalo opined that the principal cause of Student’s academic difficulties was a lack of effort – Student “gave up”.
71. Albert Fuccillo testified that he has been employed by Norwood as a regular education math teacher for the past 33 years, and since 1995 he has also been a dean. He noted that currently he teaches math at the high school and is the dean of students for the class of 2004, which is Student’s class. He explained that his responsibilities as dean of students include all discipline matters for students in the class of 2004.
72. Mr. Fuccillo testified that he was Student’s math teacher in freshman year. He also noted that he has always been a lunch room supervisor, and in that capacity has noticed that Student always sits with friends during lunch and Student interacts with them without incident. He explained that towards the end of Student’s junior year, he had the opportunity to talk with Student at the end of the day. He found Student to be able to explain what had occurred earlier. In Mr. Fuccillo’s opinion, Student was aware of the rules and the consequences for breaking rules.
73. Mr. Fuccillo testified that during freshman and sophomore years, Student did well regarding his behavior, with only a few discipline problems in his sophomore year (skipping study halls, for example). However, Mr. Fuccillo explained that Student’s behavior got significantly worse in his junior year, so that Mr. Fuccillo began seeing Student (for disciplinary reasons) twice a week and then nearly every day; it got to the point where Student was “doing whatever he wants”.
74. Mr. Fuccillo testified that, in his opinion, a significant reason for Student’s lack of success in high school is that Student was reluctant to his homework; Student’s grades were lower in the classes where homework was counted towards his grade.
75. George Fahey testified that since 1975, he has been employed by Norwood as a school adjustment counselor. He noted that he received his Masters in Social Work degree in 1967.
76. Mr. Fahey testified that his responsibility as school adjustment counselor is to support and advocate for students, and his principal role is to provide direct counseling to individual students. He explained that he met with Student 20 to 25 times for this purpose. He noted that Student discussed things calmly and reasonably, and was in control of himself. Mr. Fahey also reported that Student conversed appropriately, although his answers were always short. Mr. Fahey found Student to be someone who values his privacy; he never wanted to talk about an incident at length and declined to talk about many other things.
77. Mr. Fahey testified that Student appeared to be frustrated with academics and did not want to do the day-to-day academic work, but Mr. Fahey testified that he did not know what caused this frustration and lack of motivation.
78. The “Student Strengths and Key Evaluation Results Summary” sections of Student’s most recent IEPs have included the observation that when Student does not “understand an assignment [Student] finds it difficult to seek and accept assistance seriously” and with respect to state and district-wide testing, Student will “need clarification for [sic] instructions.” Exhibits S-7, S-8, P-3, P-4.
79. A psychological evaluation was conducted by Stephanie Ross , a Norwood psychologist, in January 1993. Test results from the Wechsler Intelligence Scale for Children – Third Edition were that Student’s full scale IQ was 83, with a verbal IQ score of 81 and a performance IQ of 89, placing Student in the low-average range of intelligence. Ms. Ross also administered the Bender Visual-Motor Gestalt Test for Children, requiring the replication of nine geometric designs. Ms. Ross found that on this test Student “made 6 developmental errors, 3 of these are significant and 2 are highly significant indicators of central nervous system dysfunction. . . . Some of these errors could still be developmental in nature.” Exhibit P-24.
80. An educational evaluation of Student was conducted for Norwood by Linda Diskin on February 12, 2002. Ms. Diskin administered the Woodcock-Johnson Psycho-Educational Battery – Revised (W-JR, 1989) Tests of Achievement, which measure various aspects of Student’s scholastic achievement. The test showed that Student’s performance, when compared to others at his grade level, was high average in Broad Reading and Broad Knowledge, average in Broad Written Language, low average in Broad Mathematics, with significant intra-achievement weakness in Broad Mathematics. Student’s test scores in Broad Math, when comparing his actual with predicted scores, revealed a negative 2.16 standard deviation. Exhibit S-20.
81. Student’s secondary school transcript reflects the following final grades for 9 th grade:
unified physics and earth sciences 60
world history and cultures 73
wood tech/manufact 76
metal tech/design 68
Class rank: 245 out of 249
Exhibit P-32 (page 222 of exhibit book).
82. Student’s secondary school transcript reflects the following final grades for 10 th grade:
ELA academic support 58
metal tech/manufact 83
world history and cultures 65
wood tech/design 67
unified physics and earth sciences 81
Class rank: 248 out of 259
Exhibit P-32 (page 222).
83. Student’s secondary school transcript reflects the following grades for terms 1 and 2 of his 11 th grade: term 1 term 2
math academic support 80 60
US history 60 55
metal tech/structures 87 55
health 85 55
computer graphics 70 55
US history 60
health 85 55
computer 70 55
biology 75 55
Class rank: 253 out of 263
Exhibit P-32 (page 222). [No explanation was provided to explain why several courses for 11 th grade are listed twice.]
84. Student’s secondary school transcript reflects (and it was stipulated by the parties) that with respect to Student’s high school grades, 65 was the minimum passing grade. Exhibit P-32 (page 222).
The sole issue to be decided is whether Student is currently eligible for special education and related services. I consider Student’s eligibility under the Massachusetts statutory and regulatory standards.3
A. Massachusetts Eligibility Standards
The Massachusetts standards are found within certain statutory and regulatory definitions.
The state special education regulations include eligibility standards within the following definition of an “eligible student”:
Eligible student shall mean a person aged three through twenty-one (3-21) who has not attained a high school diploma or its equivalent, who has been determined by a Team to have a disability(ies) , and as a consequence is unable to progress effectively in the general education program without specially designed instruction or is unable to access the general curriculum without a related service . An eligible student shall have the right to receive special education and any related services that are necessary for the student to benefit from special education or that are necessary for the student to access the general curriculum. In determining eligibility, the school district must thoroughly evaluate and provide a narrative description of the student’s educational and developmental potential.4
As reflected in this regulatory language, the Massachusetts eligibility standards require that Student meet a two-part test.
B. Student Must Meet One or More of the Enumerated Disabilities
Under the first prong of the two-part test, Student must fall within one or more of the disabilities enumerated in the state special education statute and regulations – that is, “a disability consisting of a developmental delay or any intellectual, sensory, neurological, emotional, communication, physical, specific learning or health impairment or combination thereof”.5
Student argues that he has a disability by virtue of meeting the definition of neurological impairment and/or emotional impairment. I will consider these two impairments.
1. Neurological Impairment .
The state special education regulations’ definition of “neurological impairment” provides:
Neurological Impairment – The capacity of the nervous system is limited or impaired with difficulties exhibited in one or more of the following areas: the use of memory, the control and use of cognitive functioning, sensory and motor skills, speech, language, organizational skills, information processing, affect, social skills, or basic life functions. The term includes students who have received a traumatic brain injury.6
Student argues that he has an executive functioning disability. The parties’ principal experts (Dr. Pliner for the Student and Dr. Axelrod for Norwood) generally agreed as to the nature and scope of this disability and that the disability is a neurological disorder, indicating an impairment in one or more parts of the brain and how those parts relate to each other. Testimony of Pliner, Axelrod. See Facts section of this Decision (hereafter, Facts), pars. 15, 23, 43, 52.
Executive functioning refers to the ability to execute or carry out a task. Executive functioning skills include planning and organizing the steps necessary to complete a task and then initiating those steps. Skills necessary to execute or carry out a task also include controlling attention, inhibiting impulses and regulating/controlling behavior. Conversely, executive functioning deficits limit one’s ability to execute or carry out a task – for example, to plan, initiate, organize steps, sustain attention, monitor one’s performance, and inhibit behavior that interferes with execution of a task. Students with an executive functioning disability often become frustrated and give up prior to the completion of a task. Testimony of Pliner, Axelrod.7 See Facts, pars. 15, 23, 43, 52.
Dr. Pliner and Dr. Axelrod disagreed as to whether Student has an executive functioning disability. See Facts, pars. 23, 53.
Each of these two expert has extensive experience and expertise regarding psychological testing of students, including students with this disability. Since an executive functioning disability reflects a neurological impairment, Dr. Pliner, as a neuropsychologist, is a particularly appropriate person to evaluate and testify regarding the disability. Dr. Pliner has extensive experience performing neuropsychological evaluations, including evaluations of persons who are at a similar age and have similar characteristics as Student. See Facts, par. 11. Dr. Axelrod, although not a neuropsychologist, has sufficient training and experience in this area to provide expert testimony regarding this disability. She also has extensive experience performing psychological evaluations. See Facts, pars. 39, 40. I found both Dr. Pliner and Dr. Axelrod to be intelligent, thoughtful and credible witnesses.
Dr. Axelrod and Dr. Pliner have reviewed records and interviewed Student as part of their evaluations (and Dr. Axelrod has informally observed Student and spoken to others within the School District). In reaching their conclusions regarding Student, they both rely principally on the more formal, standardized testing that formed the basis of each of their evaluations. See Facts, pars. 14, 41.
Dr. Axelrod’s testing occurred first (on or about March 3, 2003) and consisted of the Wechsler Adult Intelligence Scale – Third Edition (WAIS), the Bender Gestalt Visual Motor Task and the Rey Osterrieth Complex Figure design tests. Dr. Axelrod’s testing (including the WAIS subtests) found Student to be consistently within the average range. Dr. Axelrod reviewed several specific subtests of the WAIS which are likely to reveal an executive functioning disability, if one were to exist, and no such disability was revealed. Similarly, Dr. Axelrod testified that an executive functioning disability, if it exists, would likely show up on the Rey Osterrieth Complex Figure design test, but again Student did well on this test. Dr. Pliner, in her testimony, does not dispute the validity of Dr. Axelrod’s testing, and concurs that Student did well throughout Dr. Axelrod’s testing. See Facts, pars. 44, 45, 46, 47, 49.
Dr. Pliner had the advantage of testing Student subsequent to Dr. Axelrod’s testing. Although a neuropsychological evaluation would typically include the WAIS, Dr. Pliner did not repeat this test because it had been relatively recently administered by Dr. Axelrod. Dr. Pliner instead relied upon Dr. Axelrod’s test scores on the WAIS. See Facts, par. 22.
Dr. Pliner explained in her testimony that part of the administration of a neuropsychological evaluation is the determination by the tester of what particular tests to administer, which will depend on a review of previous testing and other records, and her interview with Student. After conducting this review, Dr. Pliner explained that she had questions in her mind concerning Student’s abilities regarding executive functioning. Based on Student’s presentation during an interview with her, she also had questions regarding Student’s ability to formulate and organize language. Accordingly, Dr. Pliner chose specific test instruments that would focus on these areas of concern and would likely reveal whether Student has deficits in these areas. See Facts, par. 14.
With respect to the specific test instruments chosen by Dr. Pliner, they probed more deeply than the WAIS subtests administered by Dr. Axelrod in that Dr. Pliner’s tests focused on Student’s ability to work with language in a more complex manner. Dr. Pliner’s testing revealed that Student performed well at a certain level of difficulty, but as Student was asked to perform a language task involving greater complexity, he demonstrated an inability to retrieve, organize and synthesize information in a way that would be useful to him. See Facts, pars. 16, 17, 18, 19, 20, 21.
Dr. Pliner’s testing persuasively demonstrated these executive functioning deficits as follows: (1) certain subtests of the Stanford Binet Intelligence Scale (4 th Ed.) (indicating that Student was well below age-equivalent performance levels when working with lengthier, more complex language), (2) the Wechsler Memory Scale (indicating a significant weakness in language in that Student remembered a significant amount of information, but he remembered the information out of sequence), (3) the Wisconsin Card Sorting Test (indicating difficulty generating problem-solving strategies and difficulty shifting from one strategy that was not working to another strategy), (4) the California Verbal Learning Test (II) (indicating that Student is able to learn information, but the information is not organized within his brain in a coherent way, with the result that Student has difficulty accessing information and performing well in less structured settings), (5) a letter writing test (indicating difficulty retrieving and organizing language involved in the more complex task of writing a letter as compared to writing single sentences), and (6) the Nelson-Denny Reading Test (indicating Student cannot organize the information in order to draw inferences from it). See Facts, pars. 16, 17, 18, 19, 20, 21.8
Dr. Pliner’s testing also persuasively demonstrated a very substantial deficit regarding math calculation. The Wechsler Individual Achievement Test (2 nd ed.) revealed that Student’s achievement levels regarding numerical operations were at the 1 st percentile (as compared to other students who are seniors in high school). Dr. Pliner noted, in contrast, Student’s non-verbal math reasoning is “fine”. See Facts, pars. 22.
For these reasons, I concur with Dr. Pliner’s conclusion that Student has significant difficulty with organizing language and has significantly reduced math organization and retrieval skills. In contrast, Student’s intelligence, as reflected in the WAIS scores, is solidly average in all domains. See Facts, pars. 24, 25.
Student’s difficulties with executive functioning were further reflected in Father’s testimony. He explained how Student has consistently demonstrated difficulty with planning, organizing and managing the most basic parts of his life, particularly with respect to multi-step tasks. Even with such routine tasks as paying bills or putting a money order into the mail, Student has demonstrated significant difficulty. See Facts, pars. 9, 10.
Dr. Pliner’s testimony and Father’s testimony were also similar in that they found that in order to complete tasks, whether the task be a standardized test administered by Dr. Pliner or completing a task of daily living, Student requires considerable assistance from others – for example, in the form of cueing or prompting. Without this assistance, Student tends simply to respond to what is presented to him in the moment and has significant difficulty planning or taking a step today that is necessary to achieve a result in the future. This again reflects deficits within Student’s executive functioning abilities. See Facts, pars. 9, 10, 14, 19, 26.
There is further indication of executive functioning deficits within Student’s IEPs proposed by Norwood and accepted by Student’s Parents. The IEPs indicate, for example, that Student should be removed from the general education classroom because he “needs to be monitored for major academic subjects due to a learning disability that affects his organizational skills and study skills.” The IEP further explained that Student “has difficulty organizing his work and studying effectively for tests and quizzes.” Exhibits S-7, S-8, P-3, P-4 (pages 34, 38, 39, 42). See History section of this Decision, pars. 4, 5.
Further support for a neurological disability is found within a 1993 psychological evaluation by a Norwood psychologist (Stephanie Ross). She found that although Student’s IQ is generally in the low-average range of intelligence, testing (through the Bender Visual-Motor Gestalt Test for Children) revealed errors which are “highly significant indicators of central nervous system dysfunction.” Exhibit P-24. See Facts, par. 79.
Norwood sought to rebut this evidence through the testimony and written report of its principal expert, Dr. Axelrod. Dr. Axelrod testified that her evaluation of Student did not reveal an executive functioning disability, nor did the reports from others employed by Norwood reveal data which would reflect such a disability. Dr. Axelrod testified that a student with this disability would normally demonstrate weaknesses on one or more of the subtests which she administered and would demonstrate certain weaknesses across multiple domains, and that Student did not demonstrate executive functioning deficits on these subtests or in other domains. Dr. Axelrod then concluded that Student “does not demonstrate the full array of characteristics that someone with an executive functioning deficit would have”. See Facts, pars. 44, 45, 46, 47, 48, 49, 50, 51, 53.
I found Dr. Axelrod’s testimony to be credible. I do not doubt that the testing which she conducted and the oral and written reports from others which she reviewed support her conclusion that Student does not have an executive functioning disability.
I also agree with Dr. Axelrod’s conclusion that Student does not demonstrate all of the characteristics sometimes found within a student with an executive functioning disability. For example, as Dr. Axelrod explained in her testimony, students with this disability often have impulsivity with the result that the student tends to act before thinking about what he is going to do, and then regrets his actions. By all reports, Student does not act impulsively. For example, there are a number of instances where he appears to have known about a school rule and acted deliberately not to follow it. Student himself has apparently stated that if he does not agree with a rule, he sees no need to follow it. There is no indication of remorse for his actions. Testimony of Axelrod, Bradbury, Andalo, Fuccillo, Father; exhibits S-1, P-18 (page 173 of Student’s exhibit book). See Facts, pars. 8, 50, 63, 69, 72.
However, I do not view the results of Dr. Axelrod’s testing or the reports of others employed by Norwood as necessarily inconsistent with a determination that Student has an executive functioning disability. As Dr. Axelrod agreed during cross-examination and may be implied in the above-quoted language from her testimony, a student with this disability could show deficits within one executive skill area but not within another. In other words, a student’s evaluation may fall within the normal range on tests that measure skills at a particular level of difficulty or that measure particular areas of competence, but may reveal significant deficits as the testing broadens to other executive functioning areas or presses the student to demonstrate skills on more demanding tasks. See Facts, pars. 52, 53.
As explained above, it is apparent that Dr. Pliner’s testing went significantly further than Dr. Axelrod’s testing in probing Student’s weaknesses in this area. As Dr. Axelrod conceded, Dr. Pliner’s neuropsychological evaluation included at least seven tests which evaluated Student’s executive functioning skills. Facts, par. 54. Perhaps most importantly, Dr. Pliner had the advantage of considering Dr. Axelrod’s test results and then administered additional tests to ascertain Student’s executive functioning skills in increasingly complex or abstract language tasks. Dr. Pliner’s neuropsychological evaluation persuasively demonstrated that as the tasks become more complicated and more abstract, Student demonstrates significant deficits in a number of executive functioning skill areas, and that these deficits significantly impact upon Student’s memory, language, organizational skills and information processing . As explained above, the degree of difficulty of task at which the executive functioning deficits appeared was no greater, for example, than writing a letter as compared to writing single sentences.
On the basis of this evidence, I find that Student has a neurological impairment which meets the above-quoted regulatory definition in that the “capacity of [Student’s] nervous system is limited or impaired with difficulties exhibited in . . . the use of memory, . . . language, organizational skills, information processing, . . . or basic life functions”.9
Student therefore meets the first prong of the Massachusetts eligibility standard.
2. Emotional Impairment .
Student also argues that he meets the disability requirement of the eligibility standards because he has an “emotional impairment” as defined by state regulatory standards.
The state special education regulations’ definition of “emotional impairment” provides:
(f) Emotional Impairment – As defined under federal law at 34 CFR §300.7, the student exhibits one or more of the following characteristics over a long period of time and to a marked degree that adversely affects educational performance : an inability to learn that cannot be explained by intellectual, sensory, or health factors; an inability to build or maintain satisfactory interpersonal relationships with peers and teachers; inappropriate types of behavior or feelings under normal circumstances; a general pervasive mood of unhappiness or depression; or a tendency to develop physical symptoms or fears associated with personal or school problems. The determination of disability shall not be made solely because the student’s behavior violates the school’s discipline code, because the student is involved with a state court or social service agency, or because the student is socially maladjusted, unless the Team determines that the student has a serious emotional disturbance.10
There is little dispute that Student has emotional needs and is taking medication for mood and anger stabilization. Testimony of Pliner, Pniewski. See Facts, pars. 27, 31. However, the evidence does not support a finding of emotional impairment as that term is defined in the above-quoted regulatory standard.
The witness with the most credentials to evaluate Student’s emotional limitations was his psychiatrist, Dr. Pniewski. Her letter to Student’s attorney concludes that Student has an emotional impairment. She goes on to recite in her letter some of the exact language from the above-quoted regulatory definition of emotional impairment. Exhibit P-36.
I do not find Dr. Pniewski’s letter to be persuasive. For example, the letter states unequivocally that Student has been unable to build or maintain satisfactory interpersonal relationships with peers and teachers (one of the regulatory provisions indicating an emotional impairment). However, Dr. Pniewski’s testimony revealed that she had little, if any basis, for reaching this conclusion as she has not discussed Student with Norwood teachers or other staff. This part of her letter was persuasively rebutted by Norwood witnesses who established that Student has many friends, has developed good relationships with several teachers and has an ability to interact in socially appropriate ways. Testimony of Axelrod, Bradbury, Fuccillo, Andalo. See Facts, pars. 37, 56, 61, 70, 72.
The regulatory standard quoted above requires that the emotional difficulties “to a marked degree . . . adversely affects educational performance”.11 Failure to establish a causal connection between Student’s emotional and educational difficulties is fatal to Student’s claim of eligibility under the category of emotional impairment.12 There was no evidence to substantiate such a connection.
Student’s neuropsychologist (Dr. Pliner) testified that Student likely has certain emotional difficulties, perhaps because of feeling that he is not in control and because he can become overwhelmed by demands that are placed upon him as a result of his executive functioning deficits. In other words, it seems likely that rather than Student having an emotional impairment which is negatively impacting his education, it is his educational and learning deficits which are negatively impacting his mental health. See Facts, par. 27.
The above-quoted regulatory language also requires that there be an emotional impairment for a long period of time. Dr. Pniewski was able to testify only with respect to the time during which she has been seeing Student – from the fall of 2003. See Facts, par. 29. Student has not presented evidence that would support such an impairment prior to this time period.
Finally, I note that Dr. Pniewski’s letter (exhibit P-36) concludes that Student “has features of depression and intermittent explosive disorder, possibly a mood disorder.” However, her testimony appeared to undercut any conclusion that Student has a significant emotional disability as a result of depression. She testified that any depression that Student may have is likely the result of other difficulties and would not be considered a primary diagnosis. See Facts, par. 37.
I find that there has been no persuasive evidence to establish the seriousness and long-term nature of Student’s emotional difficulties or the impact of these difficulties upon his education. To the contrary, the evidence indicates that most likely Student likely has certain emotional difficulties which may be a result of his learning and educational difficulties.
For all of these reasons, I conclude that Student does not have an emotional impairment as that term is used in the above-quoted regulatory definition.13
C. Student Must be Unable to Progress Effectively
Having found that Student meets the first prong of the two-part eligibility standard, I now turn to the second prong – that is, it must be demonstrated that as a consequence of his impairment (in this case, an executive functioning disability which is a neurological impairment), Student is “unable to progress effectively in the general education program without specially designed instruction or is unable to access the general curriculum without a related service .”14
The Massachusetts regulations define the phrase p rogress effectively in the general education program to mean, in relevant part:
to make documented growth in the acquisition of knowledge and skills, including social/emotional development, within the general education program, with or without accommodations, according to chronological age and developmental expectations, the individual educational potential of the child, and the learning standards set forth in the Massachusetts Curriculum Frameworks and the curriculum of the district.15
According to this definition , Student’s educational progress must be considered in light of his chronological age and developmental expectations, and his individual educational potential. Student’s individual educational potential is generally considered to be in the average range, as reflected in the IQ scores determined by Dr. Axelrod in her administration of the WAIS. See Facts, par. 42. For the reasons explained below, I find that after considering Student’s chronological age and developmental expectations, Student’s academic achievement has fallen significantly below his educational potential as a consequence of his neurological impairment.
I have found, above, that Student has a neurological impairment which is an executive functioning disability. This disability limits Student’s ability to (1) execute complex tasks, (2) perform math computations and (3) formulate lengthier, more complex language.
In order to compensate for this disabling condition, specialized instruction is necessary to help Student with written expression and math computation, and generally to help him learn how to follow instructions and complete tasks. The necessary specialized instruction will teach Student strategies which will allow him to compensate for his deficiencies – for example, to chunk information into groups or categories, to learn organizational strategies for writing, and to learn ways of relating new information to what he has previously learned. Learning these skills is essential not only to make significant educational progress at the high school level but also to be able to address problems in everyday life. Testimony of Pliner; exhibit P-1. See Facts, par. 26.
Although Student has received specialized instruction during his high school and earlier years, it appears that none of these services was designed to address his executive functioning disability. As explained below, without the specialized services recommended by Dr. Pliner, Student’s academic achievement in high school has been marked by frequent failures and has fallen significantly below his individual educational potential.
During his high school years, Student has performed poorly in his academic courses. A transcript of his grades reveals final failing grades in two courses during 9 th grade, final failing grades in two courses during 10 th grade and two courses where he obtained a grade of 65 (which is the minimum passing grade), failing grades in US history during the first term of 11 th grade and failing grades in all courses during the second term of 11 th grade. During these high school years, Student consistently ranked near the bottom of his class. Student’s grades then improved when he began receiving all of his instruction through individual tutoring. Exhibit P-32 (page 222 of Student’s exhibit book). See Facts, pars. 81, 82, 83, 84.16
In addition, standardized testing of Student has revealed significant gaps between his intelligence and achievement levels. For example, an educational evaluation of Student was conducted for Norwood by Linda Diskin on February 12, 2002. Ms. Diskin administered the Woodcock-Johnson Psycho-Educational Battery – Revised (W-JR, 1989) Tests of Achievement, which measure various aspects of Student’s scholastic achievement. Student’s test scores in Broad Math, when comparing his actual with predicted scores, revealed a negative 2.16 standard deviation. A two standard deviation indicates a significant discrepancy between Student’s aptitude and achievement in this area. Testimony of Bradbury; exhibit S-20. See Facts, pars. 67, 80.
Similarly, Dr. Pliner administered the Wechsler Individual Achievement Test (2 nd ed.) in order to determine Student’s achievement levels, which she then compared to his cognitive abilities as determined by Dr. Axelrod in her administration of the WAIS-III. Dr. Pliner found Student’s achievement levels to be as follows: single word reading was at the 14 th percentile (as compared to other students who are seniors in high school), spelling was at the 18 th percentile (as compared to other students who are seniors in high school), and numerical operations were at the 1 st percentile (as compared to other students who are seniors in high school). It appears that Student’s organizational deficits limit his overall math ability, resulting in significant functional deficits in this area. Testimony of Pliner; exhibit P-1. See Facts, par. 22.
Dr. Pliner’s evaluation report concluded that as a result of Student’s executive functioning disability and “an apparent failure to learn, and/or be taught compensatory learning and memory strategies,” Student is currently performing several years below grade level in all academic areas. Exhibit P-1.
This evidence is persuasive that Student has not acquired knowledge and skills consistent with his chronological age and developmental expectations and his individual educational potential.
An essential component of the Massachusetts eligibility standard is that it must be demonstrated that as a consequence of Student’s impairment (in this case, an executive functioning disability which is a neurological impairment), Student is unable to progress effectively. While acknowledging that Student has performed poorly in school, Norwood takes the position that Student’s academic difficulties are attributable not to any executive functioning disability or other impairment, but rather simply reflect Student’s failure to make sufficient effort.17
There was persuasive evidence that Student, during his high school years, has sometimes lacked motivation and that Student’s lack of motivation has likely impacted negatively his academic achievement. The testimony of Student’s social studies teacher (Mr. Andalo), his special education teacher (Ms. Bradbury), the Dean of Students for Student’s class (Mr. Fuccillo) all testified that, in their opinion, a significant reason for Student’s lack of success in high school was that Student did not apply himself sufficiently, particularly with respect to his homework. Similarly, Dr. Axelrod’s psychological report opined that Student “does not appear to be currently motivated to expend much energy for schoolwork or studying.” Exhibit S-1, 7 th page. Father also testified that he believes his son has a problem with motivation. See Facts, pars. 8, 58, 59, 62, 70, 74.
In effect, Norwood seeks to separate any executive functioning deficits which Student may have from his lack of motivation, and then argues that it is this lack of motivation and not any executive functioning disability which is responsible for Student’s poor academic achievement. For the reasons explained below, I am not persuaded that Student’s executive functioning disability may be separated from what has appeared to many as a situation where Student needs to try harder.
What has been characterized as a lack of motivation (for example, making insufficient effort or not cooperating with teachers’ expectations or giving up before completing a task) may be understood as the natural and perhaps inevitable result of the difficulties which Student has encountered as a result of his executive functioning disability. It appears likely that as a neurological impairment, Student’s executive functioning disability has significantly limited his academic abilities for a period of many years in school.18 During this time, the disability was not identified and Student therefore did not have the benefit of specialized instruction to address it. Inevitably, a student in this context is likely to experience significant frustration in school.
There is a variety of evidence which supports this perspective. For example, Student’s special education teacher (Ms. Bradbury) testified generally that she viewed Student as being capable of doing well academically and that all he needed to do was to make an adequate effort. Yet, when she was asked about specific aspects of academic achievement testing which she administered to Student, she testified that those areas in which he cooperated fully and gave 100 % effort were the tests where Student was able to perform well (for example, the academic knowledge test). She explained that Student seemed to enjoy showing what he knew, but that in those areas of particular difficulty (for example, math calculation but not applied math problems), he essentially refused to cooperate with the testing. See Facts, par. 64.
Similarly, Dr. Axelrod saw evidence of Student’s lack of motivation when she tested Student. Her report reflects the following observations during testing: “When frustrated by challenging items, however, he was apt to give up quickly and cease his effort. Often, items of difficulty were met with attempts to withdraw from the task. If he did not easily know an appropriate response or solution, he was apt to shut down.” Exhibits S-1, P-18 (2 nd page). See Facts, par. 57.
As Dr. Axelrod acknowledged during cross-examination, one may confuse a lack of motivation with an inability to initiate something. See Facts, par. 59. As discussed more fully above, it is a part of Student’s executive functioning disability that he has difficulty completing multi-part tasks without sufficient prompting, cueing and encouragement.
When such assistance (prompting, cueing, encouragement) was provided by Dr. Axelrod, Student was able and willing to continue. Dr. Axelrod’s report reflects the following observations during her testing: “Yet, in this individualized setting, he was amenable to examiner encouragement and persisted in his efforts, when direct explanations for maintaining effort were provided.” Exhibits S-1, P-18 (2 nd page). See Facts, par. 57.
Similarly, Dr. Pliner found that it was only with sufficient prompting and cueing that Student was able to complete the various tests administered as part of the neuropsychological evaluation. Father similarly reported that Student needs considerable assistance to complete basic tasks that involve planning or organization. Testimony of Pliner, Father. See Facts, pars. 9, 10, 13, 19.
Dr. Pliner reviewed the part of Dr. Axelrod’s report in which Dr. Axelrod discussed Student’s apparent lack of motivation. I find Dr. Pliner’s opinion persuasive that Student’s behavior is consistent with someone with a significant leaning disability who, as a result, has been able to achieve little or no success in academics. Dr. Pliner explained that, to Student, the world seems complex and overwhelming. When he meets with continuing failure, he becomes less motivated. See Facts, par. 28.
Without the individual specialized instruction necessary to help Student compensate for his executive functioning deficits, it seems likely that Student has become discouraged by the continuing difficulty he faces in completing school-related tasks, particularly those which involve planning and organizing.19
I do not doubt that there may be multiple reasons for Student’s poor motivation at school. However, for the above-stated reasons, I find that to the extent that lack of motivation has caused Student’s poor academic performance, the lack of motivation is likely attributable, at least in significant part, to Student’s executive functioning disability. From this perspective, Student’s diminished motivation is another indicator of the negative consequences of his executive functioning disability upon his educational performance.
Upon consideration of all of the evidence, I find that as a result of his neurological impairment, Student is unable to progress effectively in the general education program without specialized instruction. He therefore meets the second prong of the Massachusetts eligibility standards.
Student is eligible to receive special education and related services.
By the Hearing Officer,
Dated: April 12, 200420
COMMONWEALTH OF MASSACHUSETTS
BUREAU OF SPECIAL EDUCATION APPEALS
EFFECT OF BUREAU DECISION AND RIGHTS OF APPEAL
Effect of the Decision
20 U.S.C. s. 1415(i)(1)(B) requires that a decision of the Bureau of Special Education Appeals be final and subject to no further agency review. Accordingly, the Bureau cannot permit motions to reconsider or to re-open a Bureau decision once it is issued. Bureau decisions are final decisions subject only to judicial review.
Except as set forth below, the final decision of the Bureau must be implemented immediately. Pursuant to M.G.L. c. 30A, s. 14(3), appeal of the decision does not operate as a stay. Rather, a party seeking to stay the decision of the Bureau must seek such stay from the court having jurisdiction over the party’s appeal.
Under the provisions of 20 U.S.C. s. 1415(j), “unless the State or local education agency and the parents otherwise agree, the child shall remain in the then-current educational placement,” during the pendency of any judicial appeal of the Bureau decision, unless the child is seeking initial admission to a public school, in which case “with the consent of the parents, the child shall be placed in the public school program”. Therefore, where the Bureau has ordered the public school to place the child in a new placement, and the parents or guardian agree with that order, the public school shall immediately implement the placement ordered by the Bureau. School Committee of Burlington, v. Massachusetts Department of Education , 471 U.S. 359 (1985). Otherwise, a party seeking to change the child’s placement during the pendency of judicial proceedings must seek a preliminary injunction ordering such a change in placement from the court having jurisdiction over the appeal. Honig v. Doe , 484 U.S. 305 (1988); Doe v. Brookline , 722 F.2d 910 (1st Cir. 1983).
A party contending that a Bureau of Special Education Appeals decision is not being implemented may file a motion with the Bureau of Special Education Appeals contending that the decision is not being implemented and setting out the areas of non-compliance. The Hearing Officer may convene a hearing at which the scope of the inquiry shall be limited to the facts on the issue of compliance, facts of such a nature as to excuse performance, and facts bearing on a remedy. Upon a finding of non-compliance, the Hearing Officer may fashion appropriate relief, including referral of the matter to the Legal Office of the Department of Education or other office for appropriate enforcement action. 603 CMR 28.08(6)(b).
Rights of Appeal
Any party aggrieved by a decision of the Bureau of Special Education Appeals may file a complaint in the state superior court of competent jurisdiction or in the District Court of the United States for Massachusetts, for review of the Bureau decision. 20 U.S.C. s. 1415(i)(2).
Under Massachusetts General Laws, Chapter 30A, Section 14(1), appeal of a final Bureau decision to state superior court must be filed within thirty (30) days of receipt of the decision.
The federal courts have ruled that the time period for filing a judicial appeal of a Bureau decision in federal district court is also thirty (30) days of receipt of the decision, as provided in the Massachusetts Administrative Procedures Act, M.G.L. c.30A . Amann v. Town of Stow , 991 F.2d 929 (1 st Cir. 1993); Gertel v. School Committee of Brookline , 783 F. Supp. 701 (D. Mass. 1992).
Therefore, an appeal of a Bureau decision to state superior court or to federal district court must be filed within thirty (30) days of receipt of the Bureau decision by the appealing party.
In order to preserve the confidentiality of the student involved in these proceedings, when an appeal is taken to superior court or to federal district court, the parties are strongly urged to file the complaint without identifying the true name of the parents or the child, and to move that all exhibits, including the transcript of the hearing before the Bureau of Special Education Appeals, be impounded by the court. See Webster Grove School District v. Pulitzer Publishing Company , 898 F.2d 1371 (8th Cir. 1990). If the appealing party does not seek to impound the documents, the Bureau of Special Education Appeals, through the Attorney General’s Office, may move to impound the documents.
Record of the Hearing
The Bureau of Special Education Appeals will provide an electronic verbatim record of the hearing to any party, free of charge, upon receipt of a written request. Pursuant to federal law, upon receipt of a written request from any party, the Bureau of Special Education Appeals will arrange for and provide a certified written transcription of the entire proceedings by a certified court reporter, free of charge.
BSEA # 03-4822, which addresses a dispute over public funding of an independent educational evaluation, was consolidated with this case. The parties have informally resolved BSEA # 03-4822.
Student has also raised compensatory claims and there may be issues regarding prospective services and placement. The parties agreed that these additional claims and issues not be addressed at this time.
The federal special education statute and regulations use an eligibility standard which is similar to the Massachusetts standards. 20 USC 1401 93 0; 34 CFR 300.7(a)(1). Because the Massachusetts standards are somewhat broader (allowing certain students to be eligible who may not be eligible under the federal standards), I will utilize the state standards, although case law and regulations interpreting the federal standards may be relied upon where the federal and state standards are substantially the same. Through its statute and regulations, a state may add to or go beyond the federal special education standards. See, e.g., Town of Burlington v. Department of Education , 736 F.2d 773, 792 (1 st Cir. 1984) (states are “free to exceed, both substantively and procedurally, the protection and services to be provided to its disabled children”).
603 CMR 28.02(9) (emphasis supplied). MGL c. 71B, s. 1 provides similar language within its definition of a “school age child with a disability”.
MGL c. 71B, s. 1; 603 CMR 28.02(9).
603 CMR 28.02(7)(e).
Norwood argues that an executive functioning disability is not a sufficiently well-established or sufficiently clear disability to be considered an impairment for purposes of a special education neurological disability. However, Dr. Pliner’s testimony was persuasive regarding the importance, usefulness and professionally-accepted nature of this diagnosis in describing a student’s skills in areas which are essential to making effective educational progress and succeeding in daily life. As an experienced neuropsychologist, Dr. Pliner is well qualified to express an opinion on this issue. See Facts, pars. 11, 15, 26. See also In Re: Acton-Boxborough Regional School District , BSEA # 03-2542, 8 MSER 402 (2002) (discussing a student’s executive functioning deficits and need for therapeutic day placement).
I similarly note that Student’s special education teacher (Bradbury) testified that her administration to Student of the Woodcock Johnson – III Achievement Test Student indicated that Student scored in the 79 th percentile (as compared to other similarly-situated students) on the story recall test but on the story recall delayed test, requiring Student to remember and use information that he had received about an hour earlier, he scored in the 21 st percentile (as compared to other similarly-situated students), again indicating significantly decreased ability to retrieve information as the task became somewhat more complex. See Facts, par. 65.
There was testimony that Student has a second neurological impairment – that is, a Pervasive Developmental Disability, Not Otherwise Specified (PDD, NOS) — but I do not find this evidence persuasive. Support for this diagnosis comes only from the testimony of Student’s psychiatrist (Dr. Pniewski) but was persuasively rebutted by the testimony of Norwood witnesses Axelrod, Bradbury, Fuccillo and Andalo. In addition, Dr. Pniewski’s letter which describes Student’s disabilities does not conclude that Student has this particular disability but instead simply states that Student’s presentation “is frequently seen in individuals with some form of Pervasive Developmental Disability”. Finally, I note that in his comprehensive written closing argument, Student’s attorney has not argued that Student has this disability, instead only suggesting in his summary of the issues (page 1 of argument) that Student has “PDD-like symptoms”.
603 CMR 28.02(7)(f) (emphasis added).
Springer by Springer v. Fairfax County Sch. Bd., 27 IDELR 367 (4 th Cir. 1998) (parents must establish “critical causal connection between this condition [of emotional disturbance] and the educational difficulties [student] experienced”). The court is commenting on the federal definition of emotional disturbance. Massachusetts statute requires that the Massachusetts term (emotional impairment) be defined to be the same as the federal term (emotional disturbance). MGL c. 71B, s.1.
I need not consider whether Student might separately meet the federal standard of emotional disturbance as this term is substantially the same as the state definition of emotional impairment. See footnote 12, above, and compare 603 CMR 28.02(7)(f) with 34 CFR 300.7(c)(4).
603 CMR 28.02(9). See also the statutory definition of “school age child with a disability” at MGL c. 71B, s. 1.
603 CMR 28.02(18).
Notwithstanding these grades, Student was passing from grade to grade. Although failing grades may be sufficient to demonstrate failure to make effective progress for purposes of establishing eligibility for special education services, advancing from grade to grade is not, by itself, sufficient reason to determine that a student is not eligible. See 34 CFR 300.121(e)(1). Similarly, Student’s passing the MCAS is not dispositive of whether Student is making sufficient educational progress in light of his chronological age, developmental expectations and individual educational potential, which is the second prong of the Massachusetts eligibility standard.
Norwood has also suggested in its written argument that Student’s poor academic record may be attributable to his disciplinary problems and/or his alleged antisocial conduct, but there was no substantial evidence to support this argument.
There was no disagreement among the experts that if Student has a neurological impairment, one would expect to see the impairment early in Student’s life. Testimony of Axelrod, Pliner, Pniewski. Facts, pars. 34, 43.
Norwood did not present testimony or document that would demonstrate that Student’s lack of motivation has a different cause. Perhaps the Norwood witness who would likely have the best understanding of this issue was the school adjustment counselor (Fahey) who met with Student individually 20 to 25 times to discuss his difficulties at school. When I asked Mr. Fahey to explain, if he could, what he believed might be the cause of Student’s apparent frustration and lack of motivation at school, Mr. Fahey testified that he simply did not know. Facts, par. 77.
I acknowledge, with appreciation, the excellent legal representation provided by attorneys Norris and Sindelar throughout this dispute.