Sharon Public Schools – BSEA # 06-2927
COMMONWEALTH OF MASSACHUSETTS
SPECIAL EDUCATION APPEALS
In Re: Sharon Public Schools
This decision is issued pursuant to the Individuals with Disabilities Education Act or IDEA (20 USC Sec. 1400 et seq.); as amended by P.L. 108-4461 ; Section 504 of the Rehabilitation Act of 1973 (29 USC Sec. 794); the Massachusetts special education statute or “Chapter 766,” (MGL c. 71B) and the Massachusetts Administrative Procedures Act (MGL c. 30A) and the regulations promulgated under these statutes.
At issue here is whether the school district has demonstrated that a seventeen-year-old special education student is substantially likely to injure himself or others if he is returned to Sharon High School and thus should be ordered into a 45-day interim alternative educational setting (IAES).
On December 22, 2005, The Sharon Public Schools filed a request for an expedited hearing with the Bureau of Special Education Appeals (BSEA), seeking such an order. On December 23, 2005 the BSEA issued a notice of an expedited hearing to take place on January 6, 2006. By agreement, after a conference call between the Hearing Officer and counsel for both parties, the hearing was rescheduled for January 11, 19 and 24, 2006. The hearing proceeded on those days as scheduled. Both parties were represented by counsel. Each party presented documentary evidence and examined and cross examined witnesses. Counsel filed written closing arguments on January 30, 2006 and the record closed on that day.
Those present for all or part of the proceeding were:
Judith Levin-Charns Special Education Director, Sharon Public Schools
Judith Kuehn Sharon High School Special Education Liaison
Ralph Olsen Principal, Sharon High School
Charles Fazio Assistant Principal, Sharon High School
Patricia Kelley Special Education Teacher, Sharon High School
Debbie Saperstein Substitute teacher
Cheryl Harris School psychologist, Sharon Public Schools
Robert Atwood, Ph.D. Private psychologist
Richard Hawes Student’s private counselor
Antoinette Saunders Parents’ advocate
Marc Sevigny Observer, BSEA
Millie Sanders Observer, BSEA
Barry Mintzer, Esq. Attorney for Sharon Public Schools
Sam Schoenfeld, Esq. Attorney for Parents and Student
The official record of the hearing consists of School’s Exhibits S-1 through S-94, Parents’ Exhibits P-1 through P-42 and approximately 12 hours of tape-recorded oral testimony and argument, and the parties’ written closing arguments.
The sole issue to be decided is whether the Sharon Public Schools has proved that Student is substantially likely to injure himself or others if he returns to Sharon High School, such that the BSEA should order him into a 45-day interim alternative educational setting (IAES).
POSITION OF SHARON PUBLIC SCHOOLS
Since returning to Sharon High School after several years in out-of-district placements to address emotional /behavioral issues, Student has demonstrated an escalating pattern of angry, threatening, verbally abusive outbursts directed at school authorities, culminating in a physical assault on a substitute teacher. This behavior is a manifestation of Student’s disability and he cannot control it reliably at this time. Moreover, Sharon cannot lessen the potential risk of harm within the context of a public high school. For the safety of others, Student must be removed to an alternative setting.
POSITION OF PARENTS AND STUDENT
Sharon has failed to meet its burden of persuasion that Student is substantially likely to injure himself or others, and in fact Student does not pose such a danger. Historically Student has had problems with verbal but not physical aggression, and has significantly improved in the past couple of years. There has been no escalation of aggressive behavior on Student’s part since the start of the current school year, as demonstrated by Sharon’s inaction after the first two such incidents. As for the encounter with the substitute teacher that triggered this hearing, there are several versions of what actually occurred. Whatever did take place was the direct consequence of Sharon’s failure to adequately transition Student back to SHS after he completed the Massapoag program in 2005; to conduct a functional behavioral assessment, to provide and implement a behavior intervention plan for Student upon his return to SHS and after previous behavioral incidents, and to inform the substitute teacher that Student was on an IEP. Sharon has the duty and ability to reduce any risk of harm posed by Student by less restrictive means than removal to an IAES.
FINDINGS OF FACT
1. Student is a seventeen-year-old young man who lives with his parents and is currently enrolled in the tenth grade at Sharon High School (SHS). Student is a highly intelligent, academically capable young man. He has many friends and interests, including skateboarding and art. He has held down several part time jobs. (Parents, Student, S-2)
2. Student is eligible for special education because he has emotional and behavioral problems that have been given a variety of diagnostic labels over the years. Most recently, Student’s treating therapist diagnosed him with bipolar disorder, ADHD, and oppositional defiant disorder. As a result of these disabilities, Student can have problems managing anger and getting along with authority figures at home and in school (Hawes, Atwood, Mother, Ex. P-10, S-1 More specifically, Student often perceives that teachers and school officials are demeaning or disrespecting him. He may respond with explosive anger, verbal threats and/or abusive language. (Atwood, Hawes, P-8, P-10, P-38)
3. Student entered the Sharon Public Schools (Sharon Middle School) in the fall of 2002 which was the beginning of his eighth grade year. In his former school districts of Plainville (through fifth grade) and King Phillip RSD, Student did well until about the fourth grade, when he began having behavior problems including talking back to teachers and withdrawing socially. (Mother, P-10). Beginning in the fall of seventh grade, Student’s grades, which had been A’s and B’s became D’s and F’s and his behavior became increasingly angry, disruptive and disrespectful. (Mother, P-10)
4. In approximately March 2002, during seventh grade, a school psychologist referred Student for testing and a “risk assessment” with Heidi Peddell Hall, Ph.D., a clinical psychologist. Dr. Hall found that Student met the criteria of Oppositional Defiant Disorder, and Bipolar Disorder NOS, as well as several rule-out disorders. Dr. Hall found that Student was “irritable,” had severe mood swings, could become angry and verbally aggressive when stressed, and tended to blame others for his own behavior. (P-10)
5. Dr. Hall’s risk assessment notes that “at this point…there have been no reports of [Student] physically harming anyone,” although his “angry moods are often followed by impulsive acts, such as swearing, talking back, screaming or running off.” (P-10) She noted that when Student was “feeling a good deal of rage, [Student] has very little ability to control himself” and showed very little outward remorse or insight. (P-10) Dr. Hall recommended individual counseling and a social skills group, as well as various other accommodations and supports. She concluded that with such supports in place he should be able to function safely, but recommended a 45 day assessment placement if he made no progress over the next several months. (P-10)
6. Student transferred to Sharon Public Schools in the fall of 2002, at the start of his eighth grade year. In November 2002, Sharon found Student eligible for special education because of inability to manage anger, disruptive behavior, faulty judgment, and refusal to do homework. Sharon developed an IEP calling for, among other things, behavioral contracts, consultation by all staff and 45 minutes per week of counseling services. (P-38)
7. In approximately January 2003, after an incident involving verbal threats, Student was suspended from the Sharon Middle School. With Parents’ agreement, the TEAM placed Student at Massapoag School Diagnostic and Assessment Center in Weymouth, operated by the CHARMSS Collaborative, for a 45 day assessment. (Mother, P-40, 41)
8. In early February 2003, shortly after starting the alternative program, Student was hospitalized for an overdose of cough medicine. (Id) Upon release from the hospital, he returned to Massapoag to complete the assessment.
9. In February and March 2003, while Student was at Massapoag, Student underwent a psychological evaluation by Naami Turk, Psy. D., a licensed clinical psychologist retained employed by Sharon. Based on projective testing and clinical interviews, Dr. Turk found Student to “vacillate between feelings of depression and anger and [be] unable to modulate affect when feeling threatened by perceived confrontations with authority figures…” (P-8) Dr. Turk recommended education within a small structured therapeutic setting where he could receive consistent counseling, anger management training and limit setting. Id. A neuropsychological evaluation by Dr. Ellen Braaten, Ph.D. conducted in early April 2003 yielded similar results. (P-17)
10. A report issued by the Massapoag program on March 21, 2003 stated that Student had voluntarily participated in anger management and substance abuse counseling, and had the ability to gain access to internal behavioral controls. On the other hand, Student could, when confronted, “escalate to rage-full [sic] state within a matter of seconds. He has also shown hypersensitivity towards many situations in which he feels he is being asked to conform to the standards…for fellow students.” (P-40) Recommendations were for continued placement in a small, highly structured therapeutic milieu with anger management counseling, regular family meetings, a school-wide behavior management plan, and outside substance counseling, therapy, and psychiatric consultation. (P-39)
11. The TEAM recommended that Student continue at Massapoag for the remainder of the 2002-2003 school year (eighth grade) as well as the 2003-2004 school year (ninth grade), and Parents agreed. (P-39, Kuehn)
12. From January 24 through May 18, 2004, Student was placed residentially at the Deverux Foundation of Massachusetts treatment facility in Rutland, MA, pursuant to a referral by the Department of Social Service (DSS)2 . The purpose of placement was to address Student’s substance abuse and psychiatric issues. (S-17, Mother)
13. Upon admission, Devereux noted Student’s prior psychiatric diagnoses of bipolar disorder n.o.s.; conduct disorder, cannabis abuse, oppositional defiant disorder, narcissistic personality features; and antisocial personality features. Devereux staff found after monitoring and assessing Student over a period of time that Student did not present with any of these diagnoses, and noted that “some of the [listed] disorders and features were induced by [Student’s] substance use.” Student’s diagnosis was changed to “cannabis abuse (by history) (S-39-42)
14. Overall, Student did very well during his nearly four months at Devereux. At the beginning, he had some problems with physical aggression (posturing, not assaults) and defiance, but by the end of his stay, he was exhibiting positive behavior. (S-17)
15. In September 2004 Student returned to Massapoag High School, for his tenth grade year. (Mother, Father) Student completed tenth grade at Massapoag successfully. Kuehn, S-30)
16. In June 2005, the TEAM determined that Student was ready to transition back to Sharon Public Schools for the 2005-2006 school year (eleventh grade). On June 7, 2005, the TEAM issued an IEP calling for a partial inclusion program at Sharon High School consisting of mainstream academic classes, eight periods per 6 day cycle of academic support in the Team Based Learning (TBL) classroom plus one sixty minute period per cycle of group counseling. (S-4) Parents accepted this IEP on June 11, 2005. The TEAM decided to defer development of a specific behavior contract or intervention program until after Student had started school in the fall. (Kuehn)
17. The TBL program is a “small, therapeutic behavior program within Sharon High School.” (S-94) The goal of the program is to afford students with emotional or behavioral disabilities access to the general curriculum by offering access, as needed, to a small group classroom to regroup, process emotional or social issues that arise during the day, work on academics or work on specific coping skills. (S-94, Kelley)
18. The program, which is relatively new at Sharon High School, is staffed by Patricia Kelley, a certified special education teacher who has prior experience working with students with profiles similar to Student’s, and a paraprofessional. There is a generally applicable “Behavior Intervention Plan” which entails identifying student strengths, weaknesses and stressors that may be antecedents to inappropriate behaviors, teaching coping strategies, reducing incidence of inappropriate responses to stressors and missed instructional time. This Plan also lists “preventive strategies” including providing “downtime,” alternative activities to reduce stress, permitting students to listen to music with headphones, assistance with communication and self-advocacy skills, etc. (S-91)
19. The target population for TBL comprises students presenting with verbally or physically aggressive behaviors, oppositional behaviors, and inappropriate reactions to typical school situations, behaviors that are dangerous to self or others, or other significantly limiting behaviors. (S-94)
20. Pursuant to his IEP and to TBL policies, Student is allowed to access the TBL room if he is in a stressful situation as well as to study, get academic help, or discuss coping strategies. (Kuehn, Kelley, Student)
21. Student entered Sharon High School pursuant to the IEP referred to above in September 2005. At the time he entered, he had terminated his outside psychotherapy with Dr. Hawes by mutual agreement. (Mother, Hawes)
22. Overall, Student had mixed success during the first semester of 2005-2006. Progress reports from teachers indicate that he was more than capable of handling the academic work, and often made valuable contributions to class discussions. On the other hand, Student did little homework. Student testified that he arrived at Sharon High School lagging behind the other students academically, because the work he had been doing at Massapoag and Devereux was, in his experience, at a middle school level even in high school. Additionally, Student did not have homework at either placement and found it very difficult to adjust to doing homework as well as well as to being behind academically. (Student) Student appeared as though he was not “buying into” his work. (Kelley)
23. Student completed September and most of October 2005 without any behavioral incidents. On October 28, however, Student had a loud, angry confrontation with the TBL paraprofessional, Mr. Stefanelli, after a misunderstanding over whether or not Student had permission to shoot baskets in the gym. When Mr. Stefanelli told Student that the latter could not be in the gym, Student at first refused to stop his activities. In response to several requests by Mr. Stefanelli to return to TBL, Student reportedly got angry, asked Mr. Stefanelli, “what the f— for,” said to him “when I ask a question I expect an answer,” and, when he eventually left the room, threw a basketball against the wall and said to the teaching assistant, “shut the F— up or I’ll kill you” while he was on his way out. (Kelley, Kuehn) Student has a different version of the incident that essentially denies telling Mr. Stefanelli he would kill him. (Student)
24. Student was suspended for one day as a result of this incident. (Kelley, Student, S-78)
25. The second incident took place on November 15, 2004, when Ms. Kelley spoke to Student about copying a classmate’s work. Student responded to Ms. Kelley’s statements in a rude and insolent manner, then became agitated and verbally combative, ultimately walking out of the room. When Ms. Kelley tried to speak to him further, Student put his face close to hers and called her a “bitch” before walking away. After a three-way conversation with Ms. Kelley and assistant principal Charles Fazio, Student became extremely agitated, shouted denials and obscenities, and left TBL slamming the door behind him. Student was suspended for two or three days after this incident. (Kelley, Fazio, S-84) Neither of these two incidents appeared in any progress reports. Sharon did not conduct a functional behavioral assessment or any other assessment as a result of these incidents, and did not convene the TEAM. When asked at hearing why Sharon did not take such action, witnesses replied that a TEAM meeting was already scheduled for late November. (Kuehn, Kelley, Fazio)
26. Student has never had an individualized FBA or BIP since leaving Massapoag. (Id)
27. On November 29, 2005, a regularly scheduled TEAM meeting took place to update Student’s IEP in light of his experience in TBL. The TEAM considered an educational evaluation, conducted by Ms. Cheryl Fisher, and a psychological assessment conducted by school psychologist Cheryl Harris. (S-15, 16) The educational assessment describes Student as “cooperative, polite and hardworking.” Academic tests reveal that Student, at that time, was functioning at to well above grade level in all areas tested. (S-15) The psychological assessment consisted of a record review, observation, cognitive testing and questionnaires/rating scales to assess social/emotional/behavioral functioning. Again, Student presented as pleasant and cooperative in his interview and during the classroom observation. Cognitive testing placed him in the “very superior” range of intellectual functioning with no indication of learning disabilities. Questionnaires about his behavior indicated concerns about study skills, aggression, emotionality, emotional self-control, and resiliency. (S-16) Ms. Harris recommended continued placement in the TBL program, continued school-based group counseling, consideration of outside therapy, and a psychiatric evaluation. Neither report mentioned an escalating pattern of negative behavior, or that Student might be “dangerous.” (Id.)
28. The TEAM issued an IEP continuing Student’s placement in the TBL program. (S-2) This IEP was not signed.
29. On December 5, 2005, a confrontation took place in Student’s regular education Spanish class between Student and Ms. Debbie Saperstein, a substitute teacher. The incident began with a misunderstanding over whether or not Student could wear his headphones in class and under what conditions. According to the teacher, Student became enraged after she humorously called him “dude,” and, later, “honey” and “sweetheart,” apparently in an effort to calm him down. Ms. Saperstein testified that Student shoved the desk at which he was sitting into her thighs as she stood in front of it, and then, later, punched her wrist downward with his fist. She further testified that she was sore and bruised, but did not seek medical attention. (Saperstein)
30. Student testified that Ms. Saperstein had put her hands on him first, was acting belligerent and confrontational, and that he neither struck her nor shoved a desk into her. Rather, all hand movements were purely defensive. (Student)
31. Written reports from student witnesses, gathered by Assistant Principal Fazio and later by Student’s attorney, also describe different versions of the story. (P-18-21)
32. Ms. Saperstein did not know that Student was on an IEP, did not know that he was enrolled in the TBL program and could be sent to the TBL classroom in a crisis, and, did not know of any of his sensitivities. Had she been aware of Student’s profile and accommodations, she probably would have handled the situation differently. (Saperstein)
33. It is the practice at Sharon High School not to inform short-term substitute teachers which students have IEPs or §504 plans. The rationale is that providing this information to short term substitutes would violate student privacy rights, and is logistically difficult. (Fazio, Kuehn)
34. At least some other high schools do provide IEP information to short term substitutes, and develop methods to ensure student privacy, e.g., by keeping necessary IEP information in a locked drawer. (Saunders, Atwood)
35. Following the incident, Student was suspended from December 5 through 12, 2005. On December 7, 2005 Parents were given written notice of a long term suspension hearing and manifestation meeting, both to take place on December 13, 2005, regarding charges of disrespect, insubordination, profanity directed to a teacher and a physical assault. Parents were also notified that a report was filed with the Sharon Police Department. (S-75)
36. Parents requested a brief postponement of the meetings so that their advocate, Antoinette Saunders, could attend. The suspension hearing took place on December 15 and the manifestation meeting on December 16, 2005. (S-79)
37. At the manifestation meeting the TEAM determined that Student’s behavior on December 5, 2005 was a manifestation of his disability. The school members of the TEAM also informed Parents that Student could not immediately return to Sharon High School but that Sharon would seek placement in an IAES for a functional behavioral assessment, as in Sharon’s view, Student is substantially likely to injure himself or others if he returns to Sharon High School at this time. (Kuehn, Mother, Father, Saunders, S-80)
38. Parents offered to have Student evaluated by his own therapist, Dr. Hawes, whom Student had resumed seeing. Parents also offered to have Student evaluated by a clinician chosen by Sharon, at Parents’ expense. Sharon declined both offers. (Parents, Kuehn, S-1 )
39. On or about December 22, 2005, Sharon requested Parents’ consent to send referral packets to five facilities: Metro South Academy in East Bridgewater, Massasoit School in Braintree, Longview Farms in Walpole, Dearborn Academy in Arlington, and South Shore Collaborative in Hingham. (S-2) Parents also recall that Massapoag was mentioned as a possible IAES. (Parents) Parents have not authorized release of referral information to these programs. As of the hearing date, some or all of these programs had openings. No further evidence was presented as to how any of the proposed facilities is structured, how the IAES would be conducted, how Student would continue with his academic studies, etc.
40. On December 7, 2005, immediately after the incident with Ms. Saperstein, Student returned to private counseling with Robert Hawes, who is a licensed mental health counselor and certified addictions counselor. (Dr. Hawes has a Ph.D. in psychology but is not licensed in Massachusetts) Dr. Hawes had previously seen Student from May 2003 through December 2004, at which time they mutually agreed to terminate counseling because of Student’s positive progress. In Dr. Hawes’ experience, Student’s profile is different from that of youths who do pose a safety risk, in that Student does not have a strong history of violence, is able to empathize with others, cares what others think, and is relatively honest. Student is also motivated to return to Sharon High School, and is willing to work on issues that are barriers to his success there, namely anger management and cannabis use. (Hawes, P-2)
41. On December 29 and 30, 2006, Parents had Student evaluated by Richard Atwood, Ph.D., to assess whether Student poses a risk of harm to himself or others. Dr. Atwood has been a licensed psychologist since 1991. Since that time he has worked as a school clinical psychologist, and has chaired a mental health crisis team. He has significant experience in evaluating adolescents and has worked with many behaviorally challenging children and teens. In evaluating Student, Dr. Atwood reviewed records, and interviewed Student and persons who know and/or work with him. Based on his evaluation, Dr. Atwood hypothesized that Student could be diagnosed with bipolar disorder, conduct or oppositional defiant disorder, and cannabis abuse. Like prior evaluators, he found that Student can overreact to perceived slights, particularly from people he does not know, but generally reacts verbally and does not have a pattern of physical assaults. Dr. Atwood concluded that Student does not pose a substantial risk of injury to himself or others. He also notes that if Student were showing an escalating pattern of violence, teachers writing progress reports would be more concerned with that than with Student’s academic performance, and that the school records are notably devoid of references to escalating violence (Atwood, P-1)
42. Dr. Atwood believes that Student should have come into the program with an individualized behavior intervention plan and that this would help prevent and/or deal with future episodes. (Atwood)
43. Student has not returned to Sharon High School since his suspension on December 6, 2005. He has been receiving home tutoring during this period. Sharon has not attempted to evaluate Student during this period, taking the position that it should do so within the context of an IAES. To date, Student has been out of school for approximately 43 school days and (accounting for the holiday break and Martin Luther King day) (Kuehn, Fazio)
FINDINGS AND CONCLUSIONS
After reviewing the testimony and documents on the record, I conclude that Sharon has not met its burden of persuasion that Student’s presence at Sharon High School poses a substantial risk of injury to Student or others. More specifically, I find that Sharon has failed to present current, competent, clinical evidence tending to show that Student currently poses a risk of injury; and has failed to implement less restrictive means of mitigating any risk that Student’s behavior may pose. Moreover, even if Sharon had shown that Student were dangerous, Sharon has not provided evidence that its proposed IAES meet the statutory requirements. My reasoning follows.
IDEA-2004 provides the following regarding appeals of long term (more than ten day) suspensions of eligible students:
A. IN GENERAL—The parent of a child with a disability who disagrees with any decision regarding placement, or the manifestation determination…or a local educational agency that believes that maintaining the current placement of the child is substantially likely to result in injury to the child or others may request a hearing.
B. AUTHORITY OF HEARING OFFICER
ii. CHANGE OF PLACEMENT ORDER—…[T]he hearing officer may order a change in placement of a child with a disability. In such situations, the hearing officer may— (I) return a child…to the placement from which the child was removed; or (II) order a change in placement…to an appropriate interim alternative educational setting for not more than 45 school days if the hearing officer determines that maintaining the current placement…is substantially likely to result in injury to the child or others.
20 USC §1415(k)(1)(G)(3)(A) and (B).
Prior to the 2004 amendments, this provision required school districts seeking placement in a 45 day IAES to “demonstrate by substantial evidence” that maintaining the child’s placement is substantially likely to result in injury. See IDEA-97, 20 USC §14115()(). Hearing officers also were required to consider other factors such as the appropriateness of the child’s current placement and steps that the school district has taken to mitigate any risk of harm. See IDEA-97 at 20 USC §1415 (k)(2).
IDEA-2004 has eliminated all mention of the burden of persuasion. I conclude that this action on the part of Congress has not shifted this burden onto the parents, however, in light of the Supreme Court’s decision in Schaffer v. Weast, et al , 126 S.Ct. 528, 441 IDELR 150 (2005), which places the burden of persuasion squarely on the party seeking relief, that is, the school district seeking to change a child’s placement. Id.
IDEA-2004 also has eliminated the specific listing of factors that the hearing officer must consider when determining whether a school district has demonstrated substantial likelihood of injury. This does not mean that hearing officers may not consider these factors in deciding cases brought under IDEA-2004, however. Indeed, it is difficult to conceive how a hearing officer can assess risk of harm apart from considering what can be done to lessen the risk. Almost by definition a substantial likelihood of harm is a risk of harm that cannot be reduced. Moreover, such an analysis also is consistent with the hearing officer’s obligation to analyze whether a proposed IEP and/or placement is the least restrictive environment consistent with meeting a student’s needs, and, in fact, to consider LRE as an integral component of a free, appropriate public education.
Here, the inescapable conclusion is that Sharon has not met its burden of persuasion. Sharon’s argument that the December 5 incident culminates an escalating pattern of angry, volatile behavior and predicts dangerous behaviors in the future, simply is not supported by the record. First, until the confrontation between Student and Ms. Saperstein occurred, Sharon did not indicate any concerns about escalating behavior, notwithstanding the incidents of October 28 with Mr. Stefanelli and November 15 with Ms. Kelley. There is no mention of these incidents in any of Student’s progress reports or evaluations conducted during that period, and no indication that Students teachers, who saw him on a daily basis and knew him well, noticed increased anger, a shorter fuse, less predictability in Student’s behavior. Rather, staff, by and large, commented that Student was very appropriate in class, and they were far more concerned with Student’s refusal to do homework than his potential dangerousness.
This supports a conclusion that the incident with Ms. Saperstein, assuming it took place exactly as she described,3 was an isolated, unfortunate event precipitated by a number of factors, predictable given Student’s constellation of needs, and preventable in the future. First, as a matter of policy Sharon gave Ms. Saperstein no information that Student had any special needs, let alone emotional/behavioral issues, problems with anger management, a tendency to perceive slights or disrespect where none is intended and to react angrily, and real difficulty with confrontation by authority figures, especially if he does not know them. Sharon did not inform Ms. Saperstein that Student was attached to the TBL classroom and Ms. Kelley. If Ms. Saperstein had had this information, she might well have interacted differently with Student and/or would have called upon Ms. Kelley for assistance. To help prevent similar incidents in the future, it would be a simple matter to ensure that at least the highlights of Student’s IEP and issues are available to all who work with Students, including short-term substitutes.
Second, Sharon has conducted no functional behavioral assessment, no psychological evaluation or other evaluation that would indicate whether or not Student is dangerously explosive. Indeed, Sharon clearly stated that it would not do so outside of an alternative setting. This refusal is puzzling in light Sharon’s concern about Student’s alleged dangerousness, as well as a neglect of Sharon’s obligation to conduct an FBA and evelop a BIP when it determined that Student’s misconduct is a manifestation of his disability.
The clinical information presented by Student may be flawed for reasons suggested by Sharon in its closing argument; however, Student does not have carry a burden to prove he does not present a risk of harm, and Sharon has presented no clinical data in support of its position.
Finally, Sharon has failed to propose or even consider any measures to mitigate potential harm from Student’s behavior. Sharon has not conducted an FBA or other evaluation targeted to Student’s angry behavior either at the time he started at Sharon High School, after any of the problematic incidents, or, inexplicably, since his long-term suspension.4 It has not considered such measures as increasing the amount of time that Student spends in the TBL classroom while assessments are being done, formalizing communication between Student’s outside therapist and an appropriate individual at Sharon High School, or other such measures. Unless such less restrictive measures are considered, after appropriate analysis of Student’s problematic behaviors and their antecedents, and found to be ineffective in preventing or reducing dangerous behavior, I cannot order the most restrictive resolution of all, a change of placement.
Based on the foregoing, I order the Sharon Public Schools to do the following immediately:
1. Reinstate Student at Sharon High School;
2. Immediately conduct a functional behavioral assessment and develop an individualized behavioral intervention plan pursuant to applicable regulations;
3. Consult with Student’s treating therapist and/or other mutually agreeable clinical professionals as to immediate steps to be taken, if any, to mitigate risk of injury, if any, on an interim basis while the FBA is being conducted.
By the Hearing Officer:
Individuals with Disabilities Education Improvement Act of 2004, or “IDEA-2004”
DSS had become involved as a result of a CHINS petition initiated by Parents. (Father)
The evidence regarding the incident is unclear and contradictory. I credit both Student and Ms. Saperstein with recounting the incident to the best of their recollections. The precise sequence of events does not determine the outcome here.
I note again that by the time this decision issues, Student will already have spent close to 45 school days in what amounts to an IAES, without having been evaluated.