Falmouth P.S. BSEA # 12-7897

COMMONWEALTH OF MASSACHUSETTSDIVISION OF ADMINISTRATIVE LAW APPEALSSPECIAL EDUCATION APPEALS

Falmouth Public Schools v. StudentBSEA #12-7897

DECISION

This decision is issued pursuant to M.G.L. c. 71B and 30A, 20 U.S.C. 1401 et seq., 29 U.S.C. 794, and the regulations promulgated under said statutes.

A hearing was held on June 5, 2012 at the Falmouth Public Schools Administration Building, 340 Teaticket Highway, Falmouth, Massachusetts before Catherine M. Putney-Yaceshyn, Hearing Officer.

PROCEDURAL HISTORY

Falmouth Public Schools requested a hearing on May 2, 2012 and the hearing was scheduled to proceed on May 22, 2010. Falmouth requested that the matter be postponed until June 5, 2012 due to its counsels unavailability. Falmouth also requested that a telephone conference call be scheduled with Parent in order to discuss the issues for hearing, attempt to resolve the dispute, and ascertain Parents availability. The BSEA scheduling coordinator contacted Parent and she refused to participate in any telephone conference. The hearing was held in Falmouth to enable Parent to conveniently participate in the hearing. The Parent was provided with the phone number of the Director of the BSEA and informed that she could direct any questions to her or any hearing officer other than the one assigned to her case.

The hearing was held on June 5, 2012. Falmouth requested a postponement to submit a written closing argument. The hearing officer allowed Falmouths request and set a deadline of July 2, 2012 for the submission of the closing argument. Because Parent did not attend the hearing, the BSEA sent Parent copies of cassette tapes of the hearing and a letter informing her that she would be permitted to submit a written statement of her position with respect to the hearing issues by June 15, 2012. Falmouth submitted its written closing argument on July 3, 2012[footnoteRef:1] and the record closed. Parent did not submit any written statement. [1: The BSEA granted Falmouths request to submit its closing argument on July 3, 2012.]

Those present for all or part of the Hearing were:

Beverly SheaDirector of Pupil Personnel Services, Falmouth Public Schools

Karen KarsonPrincipal, North Falmouth Elementary School

Tara SimpsonSchool Psychologist, Falmouth Public Schools

Cathleen EdwardsSpecial Education Teacher, Falmouth Public Schools

Ann M. McDonaldIntegrated Two Classroom Teacher

Jennifer ButlerSpecial Education Department Head, K-4, Assistant Principal, East Falmouth Elementary School

Joan SteinAttorney, Falmouth Public Schools

Catherine Putney-YaceshynHearing Officer

The official record of this hearing consists of Falmouths exhibits marked S-1 through S-19 and approximately three hours of recorded oral testimony.

ISSUES

1. Whether the BSEA should override Parents lack of consent and allow Falmouth to conduct a functional behavioral assessment of Student.

2. Whether Falmouths proposed IEP and placement in the Structured Learning Center for the period from April 9, 2012 until April 8, 2013 is reasonably calculated to provide Student with a free appropriate public education in the least restrictive environment.

SUMMARY OF THE EVIDENCE

1. The student (hereinafter, Student) is a nine-year-student who resides in Falmouth and will be entering the third grade in the fall of 2012. (S-2)

1. Student entered Kindergarten in the Falmouth Public Schools during the 2008-2009 school year. He had an extremely difficult start to the year and required small group instruction. He was impulsive and engaged in problematic behaviors such as refusing to complete academic work. He had difficulty with early literacy skills such as learning letters and sounds. In November 2008 Student was transferred to an integrated kindergarten program where he was more successful. At the end of the year Falmouth recommended that Student repeat his kindergarten year, but Students mother, (hereinafter, Mother) chose to send him to first grade. (S-1, S-2)

1. During the 2009-2010 school year Student had a difficult transition academically and behaviorally. (S-1, S-2, Simpson) Dr. Tara Simpson conducted a functional behavioral assessment (fba) of Student in October 2009 because Student had been displaying aggressive and unsafe behaviors and had not been producing much work. The target behaviors were: Noncompliant/Refusal Behavior, Unsafe Behavior, and Aggressive Behavior. Students teacher, Mrs. Johnson, reported that he was refusing to complete work even with a one-on-one aide. Additionally, she reported Student was engaging in unsafe behaviors such as running around the classroom and leaving the room without permission. Mrs. Johnson also reported that Student had been aggressive toward others. He had hit and spit on other individuals and punched a student in the stomach. He had even been aggressive toward a teacher, trying to hit her with his hand and a chair. (S-1) Dr. Simpson conducted several observations and concluded that Student tended to engage in noncompliant/refusal behavior during academic tasks or when a demand was placed on him. His aggressive behaviors tended to occur during unstructured times such as recess or in the cafeteria. It appeared that he was trying to engage with peers, but lacked the social skills to do so appropriately. Dr. Simpson made several recommendations, including providing Student with instruction in social skills, and drafted a behavior plan which reduced the amount of work required of Student and rewarded him with drawing. (Simpson, S-1, See S-17)

Student was transferred to the integrated program at North Falmouth Elementary School in January 2010. Students transition was slow and he was frustrated with the curriculum and following classroom rules. He was given limited academic demands so he could meet with success and he continued to be on a behavior plan. By the end of the year he had made great progress academically, but remained behind his peers in all subjects. He was better able to monitor his behavior. (Simpson, S-2)

1. Student repeated the first grade in the integrated program during the 2010-2011 school year. He required a great deal of adult support and was below grade level in reading and writing. He was at grade level for math. His behavior had improved and he was noted to be using strategies to help him feel less angry. He continued to have difficulty with his self-control, completing his class work, and attending. (S-2)

1. Student was initially evaluated during his second year of first grade due to academic and behavioral concerns. Results of the WISC IV showed Student had a significant discrepancy between his verbal comprehension (SS of 69) and perceptual reasoning (SS of 90). Teacher ratings suggested Students adaptive skills at school were below average as compared to his peers. Additionally, teacher ratings were notable for significantly elevated levels of aggression, depression, and learning problems. Mild concerns were noted in the area of attention. Parent ratings indicated Students adaptive skills at home were significantly accelerated in daily living and socialization, but weaker in communication. Parent ratings further indicated normal social/emotional functioning. (S-2)

1. Tara Clark (now Tara Simpson), Ph.D., administered a psychological evaluation of Student at the North Falmouth Elementary School on March 31 and April 6, 2011. In addition to administering the WISC IV, she administered the WNV (Wechsler Nonverbal Scale of Ability) due to Students difficulty with communication skills. She noted that Students full scale score on the WNV was in the high average range while his full scale score on the WISC-IV was in the low average range. This indicated that the language-based requirements of the WISC-IV may have had an impact on Students performance.

Dr. Clark compiled the results of the BASC-II teacher version. The results indicated that Student is displaying externalizing problems in class. He was displaying clinically significant levels of hyperactivity and mild conduct problems. There were significant concerns in the area of learning problems and with atypicality because he sometimes seemed unaware of others. Clinically significant levels were found with functional communication or his ability to express and communicate ideas others can understand.

Dr. Clark concluded that Student has difficulties in reading and writing. She noted that a large part of his behavior issues seemed to have stemmed from his academic issues. His nonverbal ability is much more accelerated than his verbal ability which continues to show up on memory testing as well. That is why Student becomes frustrated with English language arts tasks and does better with math tasks, the report noted. Dr. Clark noted that Student continues to be more active than his peers and manifests difficulty sitting still. Additionally, there has been concern regarding Students mood instability. His moods were noted to fluctuate quickly from happiness to anger. Dr. Clark made a number of recommendations in the areas of reading, spelling, writing, and attention/hyperactivity. (Clark, See S-2)

1. Marysia Messer, a speech language pathologist and the special education teacher in Students integrated first grade classroom, conducted a special education evaluation on March 28 and April 1, 2011. She noted that Student was in his second year of the first grade, but still required strict limits and boundaries and his behavior could still flare up on occasion. She noted that Student is a remarkable artist who takes great pride in his artistic ability. She reported that Student is a sensitive and war