COMMONWEALTH OF MASSACHUSETTS
BUREAU OF SPECIAL EDUCATION APPEALS
In Re: Westford Public Schools
BSEA#: 10-6872
DECISION
This decision is issued pursuant to the Individuals with Disabilities Education Act (20 USC 1400 et seq. ), Section 504 of the Rehabilitation Act of 1973 (29 USC 794), the state special education law (MGL c. 71B), the state Administrative Procedure Act (MGL c.30A) and the regulations promulgated under these statutes.
A Hearing was held on June 25, 2010 in Westford, MA before Ann F. Scannell, Hearing Officer. Those present for all or part of the Hearing were:
Owen’s1 Mother
Owen’s Father
Abigail Verre BCBA, Westford Public Schools
Jennifer Wolf Psychologist, Westford Public Schools
Dianna Fulreader Adjustment Counselor, Westford Public Schools
Peter Cohen Principal, Westford Public Schools
Lin Westberg Guidance Counselor, Westford Public Schools
Margaret Rich Special Educator, Westford Public Schools
Kathryn Garcia TEAM Chairperson, Westford Public Schools
Diane Pelletier Director of Pupil Services, Westford Public Schools
Chris Stanvik Assistant Principal, Westford Public Schools
Bruce Holstein, M.D. Psychiatrist
Lillian Wong Attorney for the parents
Thomas Nuttall Attorney for Westford Public Schools
The official record of the Hearing consists of documents submitted by the parents and marked as Exhibits P-1 through P-19, P-23 through P-34 and P-37; a document submitted by Westford Public Schools and marked as Exhibit S-1, and approximately one day of oral testimony. Oral closing arguments were heard following the close of the testimony on June 25, 2010 and the record closed on that date.2
INTRODUCTION
Owen is a 13 year old student in the 7 th grade at the Stony Brook Middle School in Westford. Owen has been diagnosed with selective mutism and social phobia or social anxiety. Since 2006, Owen was receiving accommodations pursuant to a 504 Plan. In January 2010, he was found eligible for special education services on the basis of his emotional impairment. (Exhibits P-2, 3, 4, 5 and P-18 and testimony of Garcia, Verre, Wolf and Holstein)
Owen is a bright young boy who participates in grade level curriculum. He generally receives “A” grades for his work. Owen is not difficult to teach but consistently chooses to work on his own. Owen is interested in science, electronics, technology, card and board games, snowboarding, ping pong and bowling. (Exhibit P-18 and testimony of Owen’s mother)
Due to his disabilities, Owen struggles significantly in his ability to develop and maintain satisfactory relationships with his peers, teachers and school staff. He exhibits difficulties with emotion regulation, anxiety and social pragmatics. Owen does not like it when he feels that his personal space is invaded or feels that the “spotlight” is on him. He can become verbally or physically aggressive during these times. Owen does not eat at school nor does he use the restroom. (Exhibits P-10, 11, 12 and 18 and testimony of Owen’s mother, Holstein, Wolf and Verre)
On May 21, 2010, after completing a science test, Owen compiled a list of names of people he did not like. The list was compiled over the next few periods of school with some participation of other students. When one student reported that Owen stated that he was going to shoot the people on the list with a shotgun, school administration contacted Owen’s parents. He was suspended from school at that time. (Exhibits P-24, 25, 26, 27, 29, 30 and testimony of Owen’s mother, Verre, Westberg, Fulreader and Garcia)
A manifestation determination meeting was held on June 2, 2010. The TEAM found that Owen’s behavior was not a manifestation of his disabilities. The parents filed a Hearing Request on June 10, 2010, seeking that the matter be granted expedited status. The issue of the manifestation determination only was expedited. Westford filed a response to the expedited portion of the Hearing Request on June 16, 2010. The expedited portion of the Hearing Request went forward to Hearing on June 25, 2010. (Exhibit P-32 and testimony of Verre, Westberg, Fulreader and Garcia)
It is the parents’ position that Owen’s conduct was a manifestation of his disability. To the contrary, Westford Public Schools maintains that Owen’s conduct was not a manifestation of his disabilities.
ISSUE
The narrow issue to be decided in this case is whether Owen’s conduct on May 21, 2010 was a manifestation of his disabilities.
FACTS
Owen is 13 years old and lives with his parents and older brother in Westford. He began the 7 th grade at the Stony Brook Middle School in September of 2009. He attended classes until May 21, 2010 when he was suspended from school. Following a manifestation determination meeting on June 2, 2010 which resulted in a determination that Owen’s conduct was not a manifestation of his disabilities, the principal excluded Owen from school for the remainder of the school year. (Exhibits P-30, 32 and 34 and testimony of Verre, Garcia, Fulreader and Westberg)
In June of 2006, Owen underwent an evaluation with the Westford Public Schools due to parent and teacher concerns with his behavior. Owen was withdrawing in class without talking or moving and he was not eating or drinking during the course of his school day. Owen’s parents and teachers completed the rating scales for the Behavior Assessment System for Children (BASC-2). Owen was also administered the Self-Report of Personality portion of the BASC-2. (Exhibit P-1 and testimony of Wolf)
The results of the BASC-2 revealed elevated scores. In the parent rating scale, Owen had a clinically significant score for withdrawal and at-risk scores for depression, aggression, adaptability and social skills. The teacher rating scale showed clinically significant scores for withdrawal and aggression. At-risk scores were noted for depression, adaptability and leadership. Owen’s self report revealed that his attitude toward school fell in the clinically significant range, and interpersonal relations and self-reliance scores fell in the at-risk range. (Exhibit P-1 and testimony of Wolf)
The guidance counselor, Ms. Morneau, who had been working with Owen since December of 2005 reported that Owen had been involved in numerous incidences of negative behavior with staff and peers. These incidences included physical aggression towards peers and staff with removal of Owen from the classroom or removal of the entire class. Ms. Morneau noted that these incidences occurred in both structured and unstructured settings. She further noted that cueing Owen to move to another area, making demands and/or making Owen the center of attention were not useful strategies in addressing Owen’s behavior. (Exhibit P-1)
Also, in June 2006, the Developmental Consultation Services at Harvard Vanguard conducted a multi-disciplinary assessment of Owen at the parents’ request. Their concern centered on Owen’s refusal to participate at school when oral output is required. The developmental pediatrician who examined Owen diagnosed him with social phobia/anxiety disorder and/or selective mutism. She ruled out developmental disorder and pervasive developmental disorder (or more specifically, Asperger disorder). (Exhibit P-2)
Owen was also seen by the social worker, speech and language pathologist and the psychologist. Owen’s parents reported that Owen had refused to participate in reading out loud at school, performing in a class concert, and doing things that would bring attention to him. Owen was also lashing out at peers when he became stressed. The social worker noted that Owen did not speak during the meeting but the providers were able to communicate with him through the use of pictures, pen and pencil and playing with Owen’s stuffed animals that he brought with him. All of the providers concurred with the diagnoses of selective mutism and social phobia/anxiety. (Exhibit P-2)
The psychologist, Anne Hurley, Ph.D., described the condition of selective mutism as a persistent failure to speak, despite the ability to speak, in specific situations, such as school or with classmates, where speaking is expected. According to Dr. Hurley, selective mutism drastically interferes with educational and social achievement. She further noted that selective mutism is nearly always associated with excessive shyness, fear of social embarrassment, social isolation, clinging, and temper tantrum or oppositional behaviors due to the anxiety flood. Dr. Hurley characterized Owen’s selective mutism condition as quite severe and having persisted for several years. (Exhibit P-2)
In early November 2006, Owen was placed on a 504 Plan. The school noted that Owen’s reaction to anxiety provoking situations often presented as oppositional behavior. Accomodations were provided in the areas of social/emotional needs, behavior management, communication and activities of daily living. These accommodations included establishing a trusting and positive relationship with Owen, giving positive and negative feedback in a discrete manner, recognizing Owen’s apparent defiance as anxiety, providing an empathetic response to Owen’s anxiety, providing a designated place for Owen to retreat to when he is feeling overwhelmed, offering neutral activities to help de-escalate Owen and having regular communication with Owen’s parents. (Exhibit P-2)
Owen continued to be served pursuant to a 504 Plan and specific Behavior Plans. In October 2009, Owen was involved in an incident which resulted in a two day out-of- school suspension. Owen had been physically aggressive with a teacher. Shortly thereafter, Owen underwent school-based evaluations. Owen was found eligible for special education services and an initial IEP was proposed in January 2010. (Exhibits P-3, 4, 5, 7, 9, 10,11, 12, 13, 14, 15, 16, 17, 18, S-1 and testimony of Verre and Garcia)
These school evaluations were conducted by Westford in November and December of 2009. It was reported by Owen’s teachers that Owen is very bright and attains A and B grades. Owen is interested in science and technology. Owen follows class procedures well and completes assignments. He always prefers to work alone even when placed in a group situation. Owen rarely engages in conversation and has difficulty interacting with his peers. He is often unaware of the impact on his peers of his social interactions. Owen often does not appear to know when to stop so may cause his peers to become irritated with him. (Exhibit 18)
The Westford staff was unable to formally test Owen due to his reluctance to participate. The Woodcock Johnson III test battery, however, had been administered to Owen in 2006. According to the results, Owen’s intellectual ability was in the very superior range. His verbal and cognitive efficiency results placed his scores in the superior range and his thinking ability scores were in the very superior range. Owen’s performance on the math subtests placed him in the superior range. His broad reading, written expression and written language scores were in the high average range. The examiner found no discrepancies among Owen’s cognitive and achievement scores. (Exhibit P-14)
Informal observations, during the 2009 school evaluations, revealed that Owen was able to attend to the classroom tasks and remain focused. Work samples revealed that Owen has consistently maintained average grades in the accelerated math program. Owen is a reluctant writer and produces limited output. Further, the speech and language evaluator concluded that Owen did not present with a communication disability. The examiner found that Owen’s difficulties with verbal participation in the school setting did not appear to be language based. Further speech and language testing was not warranted at that time. (Exhibit P-14)
The Westford school psychologist attempted to conduct a thorough psychological evaluation of Owen but was unable to do so because of Owen’s reluctance. She did, however, gather some information through various behavior rating scales completed by Owen’s parents, Owen’s teachers and Owen himself. These individuals completed the Behavior Assessment System for Children (BASC-2), the Revised Children’s Manifest Anxiety Scale (RCMAS-2), the Social Skills Improvement System (SSIS) the Connors Rating Scale-3 and the Behavior Rating Inventory of Executive Functioning (BRIEF). (Exhibit P-16 and testimony of Wolf)
On the parent rating scales, clinically significant elevation was noted on the withdrawal scale and at risk elevation was noted on the depression, social skills and adaptability scales. The T score for the Connors Peer Relations Content scale was very elevated and and the Emotional Lability Global Index score was elevated. The parents also placed Owen in the below average range for social skills (4 th percentile). (Exhibit P-16 and testimony of Wolf)
On the teacher rating scales, clinically significant elevation was noted on the withdrawal scale, the depression scale, and the social skills scale. In addition, at-risk elevation was noted on the atypicality scale, the aggression scale, the adaptability scale and the functional communication scale. Owen’s teachers also scored Owen in the below average range for social skills (1 st percentile). Elevations were also reported by Owen’s teachers for emotional control and monitoring. (Exhibit P-16 and testimony of Wolf)
Owen completed the Revised Children’s Manifest Anxiety Scale. None of the anxiety indicators were elevated. Owen did report more concerns than average in the area of oppositional behavior on the Connor’s Rating Scales. He did not, however, report any elevations on the Behavior Rating Inventory of Executive Function. (Exhibit P-16 and testimony of Wolf)
Based on interviews with Owen’s parents and teachers, informal testing, data from various behavior rating scales and observation, Ms. Wolf concluded that Owen struggles significantly in his ability to build and maintain satisfactory relationships with peers and teachers. Owen often demonstrates inappropriate types of behaviors and feelings under normal circumstances. He also exhibits a tendency to develop fears associated with personal or school problems. Ms. Wolf recommended continued support within the school setting, continued outside counseling and establishing a trusting relationship with an adult at school. (Exhibit P-16 and testimony of Wolf)
In addition to the educational assessment, psychological assessment and speech and language assessment, Owen also underwent a behavioral assessment in late 2009 conducted by Ms. Abigail Verre, the school’s behaviorist. Ms. Verre’s assessment included interviews with Owen’s teachers, Owen’s parents, a record review and observations. Ms. Verre noted that the two areas of concern with Owen were defiance (refusal to obey authority when he doesn’t feel like doing something) and difficulty with communication with peers and with social interactions. (Exhibit P-17 and testimony of Verre and Owen’s mother)
Owen’s teachers reported that Owen’s defiance does not occur on a daily basis and is unpredictable and disruptive. Owen’s parents reported that when Owen becomes anxious, he will shut down and become nonresponsive. They further noted that if someone does not recognize that Owen has shut down due to anxiety and continues to place demands on him, Owen may become verbally abrasive or physically aggressive. The parents reported that the activities most likely to trigger behaviors of concern are boredom, going to the dentist, getting a haircut and hunger. (Exhibit P-17 and testimony of Verre and Owen’s mother)
During Ms. Verre’s observations of Owen, Owen was compliant, did minimally engage with students and attempted to avoid the usual school commotion in the hallways by choosing a less-traveled route to the cafeteria. Ms. Verre found that Owen utilizes a fight or flight response when he is unable to escape a situation. She recommended continuation of a behavior plan which included establishing positive relationships with Owen, presenting him with opportunities to engage with others, allowing him to sit near the door and using contingency maps to remind Owen how to handle certain situations when he is overwhelmed. (Exhibit P-17 and testimony of Verre)
As a result of these 2009 school evaluations, Owen was found eligible for special education services. An IEP was proposed in January 2010. The January 12, 2010 to January 12, 2011 IEP included an emotional goal, a school behavior goal and a written language goal. Direct services were provided by the school adjustment counselor one time per week. The school adjustment counselor also provided direct in home consultation to Owen and his parents one time per week. (Exhibit P-18)
Owen’s behavior plan was also part of his IEP. The behavior plan addressed some of Owen’s negative behaviors including aggression towards peers and staff, property destruction and disrespectful language. The plan continued to call for developing a positive relationship with Owen, identifying with Owen when he becomes overwhelmed in classs, using the contingencies map, offering Owen time to calm down and developing a plan with Owen’s parents to utilize when Owen violates a school rule. (Exhibit P-18)
On May 21, 2010, there was an incident which resulted in Owen’s suspension from school. A student approached the guidance counselor, Ms. Westberg, and advised her that Owen had a list of names and he heard Owen say the word shotgun. A second student said that he was also aware of the list of names Owen had made. When asked what he thought Owen wanted to do with the people on the list, the student responded that he thought Owen wanted to hit them. (Exhibits P-25 and 26 and testimony of Westberg)
Westford’s special education teacher, Ms. Rich, approached Owen during lunch in the cafeteria. Owen was sitting at a table and chatting with the other students at the table. Ms. Rich asked Owen what was going on and he replied, nothing. Ms. Westberg, who was also present, noticed a white piece of paper in Owen’s hands with red writing on it. When Ms. Rich asked Owen about the list, he placed it in his pocket. Lunch ended and the students headed to their classes. (Exhibits P-25 and 26 and testimony of Westberg)
Owen’s parents were contacted at that time. They agreed on a plan to bring Owen to the office. Owen was greeted by his parents and they spoke privately at that time. Owen initially denied possession of the list. After some time, Owen’s father was able to retrieve the list from Owen and gave it to Ms. Garcia, the TEAM chairperson. The list contained over 75 names of Westford students, teachers and staff. On one side of the paper, Owen had written the phrase, “I am bored.” This phrase was written over fifty times. The other side of the paper contained the list of names. Some of the names were written in Owen’s handwriting and some were not. Some of the words on the list were also crossed out and illegible. Apparently there had been some discussion with other students and input from other students while this list was being compiled over a few class periods. (Exhibits 25, 26 , 27, 28 and testimony of Garcia, Westberg and Owen’s mother)
Owen was found in violation of the Stony Brook School’s Code of Conduct and was suspended for 8 days, effective May 24, 2010.3 On May 28, 2010, Owen’s treating psychiatrist, Dr. Holstein, sent a letter to the Stony Brook principal. The letter expressed Dr. Holstein’s opinion that Owen’s actions did not amount to a credible threat but rather resulted from Owen’s boredom and frustration. (Exhibit 30 and 31)
The TEAM held a manifestation determination meeting on June 2, 2010. The parents were present at the meeting. The TEAM determined that Owen’s conduct was not a manifestation of his disabilities. (Exhibits 30 and 32 and testimony of Garcia, Verre, Fulreader and Owen’s mother)
A principal’s hearing was held immediately after the manifestation determination meeting.4 The principal excluded Owen from school for the remainder of the school year. (Exhibit P-34)
DISCUSSION
Owen is an individual with a disability falling within the purview of the Individuals with Disabilities Education Act (IDEA), 20 USC 1400 et seq. and the state special education statute, MGL c. 71B. Accordingly, Owen is entitled to a free, appropriate public education (FAPE). Owen’s eligibility, entitlement to a FAPE, status and current IEP services are not in dispute.
The narrow issue to be decided in this case is whether Owen’s conduct on May 21, 2010 was a manifestation of his disabilities. Since the parents are the party seeking relief, they have the burden of persuasion.5
The federal special education statute and accompanying regulations6 provide that a student’s conduct is a manifestation of his disability if:
I. the conduct in question was caused by, or had a direct and substantial relationship to the child’s disability; or,
II. the conduct in question was the direct result of the local educational agency’s failure to implement the IEP.7
As previously stated, Westford found that Owen’s conduct was not a manifestation of his disabilities. The parents, therefore, must prove by a preponderance of the evidence that Owen’s conduct was either caused by or had a direct and substantial relationship to his disabilities or Owen’s conduct was the direct result of Westford’s failure to implement Owen’s IEP.
The parents have presented no testimony nor produced any evidence that Owen’s conduct was the direct result of Westford’s failure to implement Owen’s IEP. The parents cannot, therefore, prevail on this prong of the inquiry.
Turning now to the inquiry as to whether Owen’s conduct was caused by or had a direct and substantial relationship to his disabilities, I find that the parents did not meet the burden of persuasion so cannot prevail. The standard outlined in the federal law is a high standard. The law was written in this manner in order to prevent always excluding a student’s behavior solely because he or she has a disability. There are times when students with disabilities engage in conduct that students without disabilities would also engage in or engage in conduct that may only relate to their disability in an indirect or general way.
In the present matter, the parents did not produce any evidence that Owen’s conduct was caused by his disabilities of selective mutism and social phobia or anxiety. Nor did they produce any evidence that Owen’s conduct had a direct and substantial relationship to his selective mutism and/or social anxiety or social phobia.
Owen participated in producing a list of students he allegedly did not like. This list was compiled when a fellow student urged Owen to write the names of people he did not like, after she observed Owen’s writing stating that he was bored. It was developed over several class periods with input from several students. There was no evidence presented that Owen displayed any anxiety or appeared agitated while writing the list or just prior to writing the list. There was also no evidence presented that any precipitating event had occurred just prior to the development of the list.
Owen’s conduct in this regard was different than conduct he had displayed in the past. His conduct occurred in a social context with some involvement by other peers. The typical triggers for Owen’s aggressive behavior, noted in his school behavior plan, were not present at the time of the incident. Moreover, Owen’s typical behavioral responses to triggering situations, namely nonresponsiveness and reactive verbal or physical aggression, were also not noted during the incident.
Ms. Verre, the school behaviorist testified that she was involved in developing a behavior plan for Owen. The behaviors the plan targeted were aggression, disrespectful language and physical aggression. Whereas Owen’s mother testified that Owen could become verbally abrasive at home if he were bored, Ms. Verre testified that the school staff had never observed Owen’s behavior escalating when he was bored in the school context. The school staff did not view boredom as a trigger for Owen. Ms. Verre further testified that when Owen felt anxious he would use a flight or fight strategy to deal with his feelings. She testified that his development of the list, in the context of the specific circumstances related to the incident, was a unique behavior that school staff had not seen before.
There is no doubt that Owen suffers from disabilities that have a significant impact on his ability to interact with peers and school staff. Nonetheless, the evidence is devoid of any causal connection between Owen’s specific conduct in making this list and his disabilities of selective mutism or social anxiety or phobia. Whereas Owen spent some minutes writing on a piece of paper that he was bored, he did not exhibit any increased anxiety or physical or verbal abrasiveness usually associated with his emotional impairment. The standard to determine whether Owen’s conduct was caused by or had a direct and substantial relationship to his disabilities requires more than a general relationship between his conduct and his disabilities.8
Owen’s treating psychiatrist, Bruce Holstein, M.D., testified in a general manner about selective mutism and the difficulties it presents for Owen. Dr. Holstein, however, did not testify that Owen’s conduct was caused by his selective mutism and/or social phobia. No one testified that Owen’s conduct was caused by his selective mutism and/or social phobia. Dr. Holstein also did not persuasively testify that Owen’s conduct had a direct or substantial relationship to Owen’s selective mutism or social phobia. Dr. Holstein testified in a general way, stating that because Owen has selective mutism and/or social phobia, he could not be expected to understand the consequences of his behavior. Dr. Holstein also testified that Owen’s behavior could be unpredictable if Owen was “upset, pressed, overwhelmed or anxious,” yet there was no testimony that these conditions were present at the time of the incident.
Dr. Holstein also testified that he does not provide any therapy to Owen but that he only manages his medication. Dr. Holstein testified that he had no conversations with Westford about Owen or the incident. Dr. Holstein has never observed Owen in school. In addition, Dr. Holstein testified that he did not speak with Owen’s therapist following this incident. Also, Dr. Holstein has not spoken with any of Owen’s recent therapists. More importantly, Dr. Holstein could not credibly testify as to the relationship between Owen’s conduct and his disabilities.
The evidence does not support a conclusion that because of his disabilities, Owen was so withdrawn, shutdown, anxious or unable to speak that he was unable to control his behavior in participating in writing a list of names of people he did not like. The evidence also does not support a conclusion that because of his disabilities, Owen exhibited extremely poor social judgment and was unable to appreciate the consequences of his behavior. The mere fact that someone with selective mutism and/or social phobia has these impairments, does not mean that in any given circumstance his or her behavior was caused by or had a direct and substantial relationship to these disabilities.
Having failed to present any credible testimony that Owen’s conduct caused or had a direct and substantial relationship to Owen’s disabilities, the parents have not met their burden of persuasion. Accordingly, I am unable to find that Owen’s conduct was a manifestation of his disabilities.
ORDER
Owen’s conduct on May 21, 2010 was not a manifestation of his disabilities. The TEAM determination that Owen’s conduct on May 21, 2010 was not a manifestation of his disabilities is upheld.
So Ordered by the Hearing Officer,
_____________________________
Ann F. Scannell
Dated: July 6, 2010
1
Owen is a pseudonym used for confidentiality and classification purposes in publicly available documents.
2
Prior to the Hearing, Westford filed a motion to dismiss which was opposed by the parents. The motion was summarily denied prior to the start of the Hearing.
3
Owen had been suspended in October 2009 for two school days.
4
The parents did not participate in the principal’s hearing.
5
Schaffer v. Weast , 546 U.S. 49, 62 (2005).
6
Massachusetts defers to the federal law and regulation in matters involving discipline.
7
20 USC 1415(k)(1)(E)(i); 34 CFR 300.530(e)
8
See In Re Scituate Public Schools, 13 MSER 13, 47 IDELR 113 (SEA MA 2007).