Before the Administrative Hearing Commission State of Missouri , in the interest of , Petitioner, vs. ST. LOUIS CITY SCHOOL DISTRICT, Respondent. ) ) ) ) ) ) ) ) ) ) ) ) No. 17-0222 DECISION (Grandparent) filed a due process complaint against the St. Louis City School District (District), alleging that the District failed to provide her grandson (Student) with a free appropriate public education (FAPE) pursuant to the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1400 et seq. We find the District failed to provide Student with FAPE because it failed to evaluate Student for Other Health Impairment (OHI) and failed to identify Student as having an Emotionally Disturbance (ED) in November 2016. We order the District to provide Student with compensatory education. Procedure On February 24, 2017, Grandparent filed her due process complaint against the District. On March 7, 2017, the District filed a motion for extension of decision date and continuance of the pre-hearing conference and hearing. On March 8, 2017, we granted the District’s motion and rescheduled the hearing for May 4-5, 2017, with a decision date of June 5, 2017. On March 8,
Transcript
Before the Administrative Hearing Commission
State of Missouri
, in the interest of , Petitioner, vs. ST. LOUIS CITY SCHOOL DISTRICT, Respondent.
) ) ) ) ) ) ) ) ) ) ) )
No. 17-0222
DECISION
(Grandparent) filed a due process complaint against the St. Louis City School District
(District), alleging that the District failed to provide her grandson (Student) with a free
appropriate public education (FAPE) pursuant to the Individuals with Disabilities Education Act
(IDEA), 20 U.S.C. §1400 et seq. We find the District failed to provide Student with FAPE
because it failed to evaluate Student for Other Health Impairment (OHI) and failed to identify
Student as having an Emotionally Disturbance (ED) in November 2016. We order the District
to provide Student with compensatory education.
Procedure
On February 24, 2017, Grandparent filed her due process complaint against the District.
On March 7, 2017, the District filed a motion for extension of decision date and continuance of
the pre-hearing conference and hearing. On March 8, 2017, we granted the District’s motion and
rescheduled the hearing for May 4-5, 2017, with a decision date of June 5, 2017. On March 8,
2
2017, the District filed a response to the complaint. The District and Grandparent filed their
prehearing conference statements on March 29, 2017. We held a prehearing conference by
phone on April 3, 2017. On April 24, 2017, Grandparent filed a motion for continuance of the
hearing and extension of decision date. On May 2, 2017, we granted Grandparent’s motion and
rescheduled the hearing for September 5-6, 2017, with a decision date of October 5, 2017.
On July 27, 2017, Grandparent filed an amended complaint and motion for leave to file the
amended complaint and to continue the hearing and extend the decision date. On July 28, 2017,
we granted Grandparent’s motions, and continued the hearing and decision date to November 6-
7, 2017 and December 7, 2017 respectively. On August 4, 2017, the District filed a response to
the amended complaint, a motion for continuance of hearing and request for extension of
decision date. On August 4, 2017, we granted the District’s motion and continued the hearing to
November 15-16, 2017, and extended the decision date to December 18, 2017.
On November 15-16, 2017, we held a hearing. Attorneys Margaret G. LaMore and
Michelle L. Weltman of Legal Services of Eastern Missouri represented Grandparent. Attorney
John F. Brink of Thomaczek & Brink, LLC represented the District. At the time of the hearing,
the parties orally and jointly requested additional time to file their proposed findings of fact,
conclusions of law, and legal arguments and requested that the decision date be extended to
January 18, 2018. We granted the parties’ oral motion. This case became ready for decision on
December 18, 2017, when the last briefs were filed.
Findings of Fact
1. At the time of the hearing, Student was years old. He has medical diagnoses of
Attention Deficit Hyperactivity Disorder (ADHD) and Disruptive Mood Dysregulation Disorder
(DMDD).
3
2. Student lives with his maternal grandmother, , and has lived with her since
August 2014. Grandparent obtained legal guardianship of Student in November 2015.
3. Student attended Peabody Elementary School (Peabody) from January 2013 to
March 2017. Peabody is a school within the St. Louis City School District.
Witnesses at the Hearing
4. Indria Harris is the school counselor for Peabody. Her responsibilities include
requesting IDEA evaluations. Harris routinely worked with Student and Student’s family and in
the coordination of school services.
5. Ryan Liberati, PhD, has a doctorate degree in counseling and an MA in applied
education psychology. He is a private practice contract therapist for Foundations for Change.
While Student was in first and second grade, Liberati provided weekly counseling services to
Student during the school day. Liberati worked on skill building, impulse control and social
skills with Student.
6. Gina Bufe is an advanced practice nurse at Mercy Hospital with a PhD in nursing,
an advanced practice certification in child and adolescent mental health, and a clinical nurse
specialist certification in adult mental health. Bufe coordinated Student’s health care with his
physician, and diagnosed and treated Student at all relevant times.
7. Laketa Jefferson is a certified school psychological examiner for the District and
has been in that position for about four years. Jefferson conducted an examination of Student.
8. Pam Kennedy testified as an expert witness for Student. She previously worked
for the Special School District for thirty-two years, the District for four years, and has had a
private practice for eighteen years. She is a school psychological examiner with a bachelor’s
degree in communication disorders and an MA in communication disorders. In her work, she
4
has performed approximately 4,000 student evaluations. Kennedy performed an Independent
Educational Evaluation (IEE) on Student.
9. Grandparent testified on behalf of Student.
10. Monica Miller-Seawood is the principal at Peabody and has been in that position
since the 2015-2016 school year.
11. Amy Konsewicz is the school social worker who worked with Student during the
2015-2016 school year. She has a BS and MA in social work with an emphasis in mental health
and family interventions and is working on her PhD in social work. She is also certified in
trauma-focused cognitive behavioral therapy and grief therapy. She previously worked in foster
care and trauma-focused therapy.
12. Mary Ann Dubbs was the Kindergarten teacher for Student in the 2014-2015
school year. She has a degree in elementary education and is a certified teacher in Missouri and
Illinois.
13. Molly Estes is a nationally certified licensed professional counselor who works as
a classroom therapist at Great Circle. She worked with Student at Great Circle from March 2017
through June 2017.
Preschool and Kindergarten 2013-2014 School Year at Peabody
14. On January 23, 2013, Student enrolled in preschool at Peabody. Student began
showing behavioral problems, and Peabody called Grandparent to take Student home because of
behavioral issues three times in February 2013. His report card for preschool indicated, “totally
unacceptable behavior.”
15. During kindergarten in 2013-2014, Student lived with his mother, who suffered
from drug addiction and other problems associated with addiction and poverty. Student
5
witnessed drug use, sexual activity, and violence in or around his home. He did not consistently
receive basic needs or supervision.
16. On November 1, 2013, Student’s mother requested an IDEA evaluation of
Student.
17. On December 19, 2013, Student was withdrawn from Kindergarten. Out of 175
days of school, Student was present for 86 days.
2014-2015 School Year—Kindergarten Repeated
18. In August 2014, Student began living full time with Grandparent. Under the care
of Grandparent, Student enrolled at Peabody and repeated kindergarten. His kindergarten
teacher was Dubbs.
19. On September 3, 2014, Grandparent requested an IDEA evaluation from Peabody
for Student and his siblings.
20. In response to Grandparent’s request for an IDEA evaluation, Peabody held a
meeting on September 23, 2014. It is unclear from the evidence presented whether this was a
meeting to determine eligibility under IDEA. Student’s teacher, social worker, counselor, and
two others attended the meeting and determined that they did not have enough information about
Student because Student was deemed to be in “transition” because he had moved from his
mother’s to Grandparent’s care and he had not attended school consistently. Student’s
counselor, Harris, already had concerns about Student’s behavior, but believed more time was
needed to properly evaluate it.
21. Peabody began its Student Intervention Team process (SIT) – a preliminary step
Peabody takes before making a referral for special education to the District. The SIT process
lasts approximately 60-90 days. During that time, the school tries implementing new strategies
and recording data to evaluate their success or failure. The group decided to track Student’s
6
behavior going forward and hold another meeting on October 28, 2014. The group did not
develop any strategies to address Student’s behavior.
22. During the 2014-2015 school year, Peabody sent Student home numerous times
for behavior. As a result of a suspension in November, Peabody issued a parental appearance
notice and, because no family could come to school and stay with Student during school, Student
missed school from mid-November through early December.
23. Peabody would only send Student home if his behavior became so extreme that it
was unsafe. Student’s behavioral problems included eloping from his classroom or the school
building, fighting with staff or children, and inability to be redirected or calmed down.
24. The SIT team never reconvened during the Fall 2014 semester.
25. Student received only grades of “Average,” “Passing,” or “Still Progressing,”
during his Fall 2014 semester of kindergarten. However, Student’s behavior worsened
throughout the year. His teacher commented, “RESPONDS BEST TO PRAISE, NEEDS
CONSTANT SUPERVISION.”
26. On January 12, 2015, Dubbs e-mailed Harris to inquire “about the status of
[Student’s] IEP.” Dubbs wrote to Harris:
We have only met once (Sept. 23) to discuss his needs, and have yet to have a formal SIT or Red meeting to come up with any possible strategies to use. His mother requested help in Nov. 2013 and grandma requested testing in Sept. 2014. I have turned in the necessary paperwork in September and have been keeping student work samples and data for him all this time. Even if we forget about the behavior part (since grandma has yet to get a doctor's appointment and his case worker changes on a monthly basis), his academic skills are insufficient I cannot retain him since he is a second-year kindergartener, and I am having serious issue of him going to first grade without receiving some kind of assistance. Also, since he's getting further behind academically, he is becoming frustrated more easily and his behavior is escalating (it's no longer just acting out to get my attention, he is becoming violent towards the other students). I was wondering if he can possibly receive some form of counseling or group therapy so we has [sic] some way of dealing with his emotions. Thank you for your help![ ]
7
Harris responded on January 13, 2015 that she would consult with the District’s psychological
examiner.
27. On January 23, 2015, Student received a two-day suspension for threatening to
kill a staff member with a knife located in a teacher’s desk. Harris completed a risk assessment
score that determined Student was a “Medium Threat” for homicide.
28. On February 10, 2015, Linda Isaac, Special Education Process Coordinator for the
District, received an e-mail addressing disciplinary issues with Student. The e-mail stated that,
on that day, Student threatened a classmate with a rock, threw a toy at a student, tried to run
away from school, and masturbated during class. Peabody staff, including members of Student’s
SIT team, also received this e-mail.
2015 RED
29. On February 20, 2015, a “Review of Existing Data Documentation Form” (2015
RED) was completed for Student with input from Student’s teacher, Harris and Grandparent.
30. The 2015 RED noted Student did not currently have any diagnoses, but had an
appointment for evaluation on March 18, 2015.
31. The 2015 RED notes the following concerns from the teacher interview:
• Student is incapable of functioning independently without assistance. • He attempts to interact with students, but he has no filter. Student uses profanity, hits with belts, throwing rocks. Student is considered to be a bully. He has no true friends. Previous attention concerns with running out of the classroom. Student’s attendance is at 74.5%. During the month of November he didn’t attend School current attendance at 73%. • Student has received parent complaints. Stu[dent] took his pants of[f] and masturbated in front of the classroom. Curses like a sailor.
8
32. The teacher’s interview also noted her assessment of Student’s academic
achievement as “below kindergarten” and this included problems with decoding, high frequency
words, knowing his upper/lowercase letters, difficulty in identifying numbers if mixed up.
33. In the section attributed to Student’s counselor, the 2015 RED states that Student
had a troubled home life.
Treatment by Bufe and ADHD Diagnosis
34. On March 18, 2015, Student began seeing Bufe, an advanced practice nurse at
Mercy Hospital.
35. After having Grandparent and the teacher complete the Vanderbilt Rating Scales
to test for ADHD, reviewing lab results, and consulting with Student’s physician, Bufe
diagnosed Student with ADHD combined type. She prescribed Student Adderall XR 5
milligrams.
36. On April 21, 2015, Student returned to Bufe for ongoing management of ADHD.
Grandparent reported to Bufe that the Adderall helped Student’s behavior but caused him to get
hives. Bufe changed his prescription to methylphenidate 18 milligram extended release.
2015 IDEA Evaluation and Student’s Behavior after Diagnosis of ADHD
37. On April 13, 2015, Peabody sent Student home from school early due to behavior
issues and suspended him for two additional school days.
38. On April 17, 2015, the District held Student’s initial IDEA eligibility conference
and issued its initial psycho-educational report (2015 IDEA evaluation).
39. The 2015 IDEA evaluation document noted Student’s behavioral problems and
unstable home life. Dubbs reported that these behavioral problems affected Student’s academic
performance and that interventions and strategies used produced negligible results.
40. As part of the 2015 IDEA evaluation, Dubbs and Grandparent completed the
Behavioral Assessment System for Children-Second Edition (BASC-2). Dubbs and
9
Grandparent’s responses indicated clinically significant behavioral issues in hyperactivity,
aggression, conduct problems, externalizing problems, learning problems, school problems, and
atypicality.
41. The 2015 IDEA evaluation included the Wechsler Intelligence Scale for Children
– Fourth Edition (WISC-IV). Student’s WISC-IV score of 83 placed him in the 13th percentile
and is considered low average.
42. Student achieved a Young Children’s Achievement Test (YCAT) score of 84,
which placed him in the fourteenth percentile and low average overall.
43. In the area of language, Student tested below expectations for same-age peers but
commensurate with cognitive abilities.
44. The IEP team determined that Student did not meet Missouri Department of
Secondary Education standards for Intellectual Disability and Specific Learning Disability
because Student’s intellectual functioning was not two or more standard deviations from the
mean and his adaptive behavior is commensurate with intellectual functioning. Additionally, the
IEP team determined that, although Student demonstrates inappropriate behavior, it lacked
sufficient information to warrant a diagnosis of ED.
45. Although the report acknowledged Student’s ADHD diagnosis, the IEP team did
not assess Student for OHI.
46. On April 15, 2015, Peabody suspended Student for behavior issues.
47. Student attained final grades of satisfactory and “still developing/progressing.”
His teacher indicated reading and writing as areas of concern, and he was advanced to first grade.
48. Over the Summer, Bufe increased Student’s medication for Concerta to 27 mg
daily.
10
First Grade 2015-2016 at Peabody
Washington’s Classroom
49. Student continued at Peabody for first grade. His teacher was initially Ms.
Washington. He continued receiving counseling from Harris. His behavior problems continued.
50. At the beginning of the school year, Bufe increased Student’s medication for
Concerta to 36 mg daily.
51. On September 24, 2015, Peabody received a disciplinary referral indicating that
Student refused to cooperate during class and threw a chair at another student. Student was
taken to the principal’s office, and began running up and down a stairway before being returned
to class. He was suspended for one day.
52. On October 2, 2015, Peabody received a disciplinary referral indicating that
Student was crawling on the floor and screaming during math. Then, unprovoked, Student
walked up to another student and punched her several times in the face and side of the head.
Peabody suspended Student for one day for his behavior.
53. On October 5, 2015, Peabody sent student home early due to behavior issues.
54. On October 7, 2015, Student visited Bufe. Bufe noted concerning behavior with
peers at school and supplemented Student’s Concerta prescription with Abilify, 2mg. Abilify is
an anti-psychotic medication used to treat severe aggression. The drug is meant for short-term
use and requires monitoring for side effects such as dystonia – a form of muscle rigidity – and
gynecomastia – the development of male breasts.
55. On October 20, 2015, Peabody received a disciplinary referral indicating that
Student ran from his classroom, stole candy from his teacher, and pushed a chair at the teacher.
Peabody suspended Student for one day for his behavior.
11
56. On November, 4, 2015, Peabody received a disciplinary referral indicating that
Student fought with a student who took his backpack and teased him. The fight involved hitting,
punching, and kicking.
57. On November 16, 2015, Bufe provided information on OHI to Grandparent
because she believed Student might qualify for an IEP.
58. During the month of December 2015, Student received four disciplinary referrals:
• December 2, 2015, Student took and ate a teacher’s lunch and eloped from the classroom. He received a suspension for two days. • December 7, 2015, Student began running around, hitting other students. When told to stop, he started cursing and threw chairs at students and the teacher. Student then smacked a student in the face and ran from the classroom. Later, Student kicked and punched another classmate and threw a cup of water onto his classmates before running out of the room. • December 10, 2015, Student used profanity and threatened to hit an adult in their private area. • December 16, 2015, Student punched and kicked another student then threw a chair at his teacher. He received an out of school suspension of two days.
59. On December 9, 2015, Student began seeing Liberati for anger management and
treatment of his verbal and physical aggression.
60. On December 17, 2015, Liberati noted refusal and noncompliance from Student
during their session.
61. On December 18, 2015, Amy Konsewicz, Peabody’s social worker, reported to
Principal Miller-Seawood that Student “is not a part of the SIT process and does not have a BIP.[
] Creating and implementing the BIP is going to have to be the next step…” She further reports
that Student exhibits daily behaviors including defiance, physical aggression to staff and
students, inappropriate language, elopement, refusal to complete work, outbursts, and destruction
12
of property. As to interventions, she reports “[a]fter implementation of interventions, [Student]
did not engage in interventions and progress is not being made (it is escalating).”
62. On January 4, 2016, Washington sent a request to Principal Miller-Seawood that
Student be removed from her classroom because he kicked a student and threw a chair at her.
63. On January 14, 2016, Bufe increased Student’s Abilify prescription to 4
milligrams because Student’s aggression problems continued.
64. On January 19, 2016, Liberati noted noncompliance from Student during their
session.
65. On January 21, 2016, Liberati noted minimal compliance from Student during
their session.
66. On January 28, 2016, Liberati met with Student after he was found in the hallway
refusing to go to class. After meeting with Liberati, Student returned to class and was able to
engage minimally.
67. On February 1, 2016, Miller-Seawood approved the move from one first grade
teacher to another because it would improve the climate of Washington’s classroom.
Lindsey’s Classroom
68. On February 2, 2016, Peabody moved Student into Lindsey’s classroom.
69. From February to April 2016, Liberati observed Student actively participating in
his classroom. He met with Student four times in February 2016 and noted that Student was
compliant with no signs of anger difficulties.
70. On March 31, 2016, Grandparent requested an IEE.
71. In May 2016, Liberati experienced some partial noncompliance from Student
after meeting with him for running out of the classroom.
13
72. On May 17, 2016, Liberati closed his therapy due to Student’s improvement in
conduct and classroom behavior.
73. Student completed first grade at Peabody. His report card shows improvement
from the beginning of the year to the end of the year from almost all minuses in the beginning of
the year to almost all pluses by the end of the year.
74. From June 6-9, 2016, Student attended summer school, but withdrew because of
behavior problems.
Second Grade 2016-2017
75. Student resumed school at Peabody for Second Grade. His classroom teacher was
Burkins.
76. On August 2, 2016, Student’s uncle died.
Miriam Learning Center IEE
77. On September 27 and 28, 2016, Student underwent an IEE at Miriam Learning
Center. Louis Thomas and Pam Kennedy, both certified school psychologists, conducted the
IEE.
78. On September 27, 2016, Grandparent and Burkins completed the Behavior
Assessment System for Children-2 (BASC-2). BASC composite and subscale scores between 60
and 69 are considered “at risk,” and scores over 70 are clinically significant. Both Grandparent
and Burkins reported clinically significant scores in the area of externalizing problems and each
of its subcategories: hyperactivity, aggression, conduct problems. “At risk” behaviors included
the areas of depression, attention, learning problems, withdrawal, social skills, leadership, and
study skills.
79. On September 28, 2016, Student took the Stanford-Binet Intelligences Scales –
Fifth Edition (SB5). Student received a full-scale IQ score of 88, which placed him in the “low
14
average” range and 32nd percentile. In the area of “Fluid Reasoning,” Student received a score
of 118, which placed him in the “high average” range and 88th percentile. In the area of
“Knowledge,” Student received a score of 91, which placed him in the “average” range and 27th
percentile. In the area of “Quantitative Reasoning,” Student received a score of 86, which placed
him in the “low average” range and 18th percentile. In the area of “Visual Spatial,” Student
received a score of 79, which placed him in the “borderline impaired” range and 8th percentile.
In the area of “Working Memory,” Student received a score of 77, which placed him in the
“borderline impaired” range and 6th percentile.
80. Student also took the Woodcock-Johnson IV Tests of Achievement (W-J IV).
The W-J IV measures academic achievement in multiple areas compared to similar peers.
Student’s scores were “very low” or “low” in several areas including broad reading (69), reading
(77). These scores generally reflected that Student was 1-2 years below his current grade
placement.
81. Thomas and Kennedy suspected that Student’s true level of cognitive ability
would be average if not for problems with visual and auditory attention to details. Thomas and
Kennedy made several recommendations including:
• A Functional Behavior Assessment involving classroom observation targeted and assessing problem behaviors. • Preferential seating close to teacher and away from extraneous noise. • Reviewing instructions 1-on-1. Eye contact. Having Student repeat instructions. • Allowing Student to stand or providing a ball seat. • Incentivizing Student to work with positive reinforcement structure, games, and challenges.
15
• Provide a research based early intervention reading program, specifically “Road to the Code” or “SPIRE.” SPIRE requires daily one on one administration for 25-50 minutes a day. • Flash cards for practice and repetition of basic math facts. 82. Student also underwent a language evaluation at Miriam Learning Center.
Thomas and Kennedy recommended structured language tasks that address vocabulary,
increased exposure to literacy-based activities, and instructions broken into small units.
83. In November 2016, the District received a copy of the IEE findings. The school
counselor, Harris, received a copy and sent it on to Jefferson, the District’s school psychologist,
and Principal Miller-Seawood.
84. Despite receiving the IEE in November, 2016, there was no team or other meeting
to review the IEE, nor was there any formal review of the IEE by the principal or Jefferson, or
any RED meeting scheduled from November 2016 until March 6, 2017.
Counseling by Liberati Resumes
85. On October 20, 2016, Liberati resumed treatment of Student and met with
Student in the principal’s office regarding elopement from class. Liberati noted partial
noncompliance from Student during their session.
86. On October 28, 2016, Liberati noted compliance from Student.
87. On December 2 and 9, 2016, Liberati noted significant refusal and noncompliance
during their session as well as destructive behavior in the classroom. Liberati described
Student’s overall progress as unsuccessful.
88. Also on December 9, 2016, Liberati drafted a letter to Peabody stating that
Student had made “some progress,” but was “unsuccessful in treatment” and would benefit from
more intensive services. He made the following recommendations:
I would recommend the client be placed into intensive therapeutic services for his behavior and anger management problems. Based upon my classroom observations and educator interviews, the client would benefit from a more
16
restrictive environment to ensure his safety and access to intensive therapeutic services.[ ] 89. On January 20 and 27, 2017, and on February 1, 10, and 21, 2017, Liberati noted
significant noncompliance and difficulty with emotional regulation. Student made no progress in
counseling. On February 21, 2017, Liberati once again recommend intensive outpatient therapy
or a therapeutic school.
Medical Treatment of Student During Second Grade
90. Student remained on 36 mg Concerta, and at the beginning of second grade
continued taking Abilify 2 mg.
91. Bufe increased Student’s Abilify to 4 mg on the December 13, 2016 visit.
92. On February 3, 2017, Student was admitted to DePaul Hospital for severe mood
symptoms and presenting a danger to others. During his hospital stay, Student was diagnosed
with DMDD.
Continued Behavior Incidents and Requests to District
93. From September 2016 through March 2017, Student’s behaviors prohibited him
from learning. Discipline referrals were ineffective. Behavioral interventions were ineffective.
Peabody staff was unable to prevent Student from elopement, aggression toward teachers and
other students, destruction of property, use of profanity, and behavior that was harmful to
himself or others. The specific incidents included:
• From September 19, 2016 through October 26, 2016, Burkins contacted Grandparent six times regarding Student’s behavior, including: disrespectfulness of others/property, elopement, crawling around on floor, and profanity. • On October 25, 2016, Harris observed Student throwing, hitting and punching a kindergarten student. • Burkins attempted to contact Grandparent twice in November 2016, due to Student’s daily elopement, including elopement from in-school suspension, and disruptions of classroom.
17
• On November 28, 2016, Student eloped and Harris responded to assist. • On December 5, 2016, Student disrupted other students by being out of his seat, flying paper airplanes, engaging in fights and eloping from the music classroom. • On December 10, 2016, Burkins made a disciplinary referral for inappropriate language, defiance, throwing rocks at students, urinating on the stairs, and other noncompliance. • On December 13, 2016, Burkins videotaped Student knocking other students’ work off the desk, kicking over chairs, throwing chairs, bad language, kicking and other threatening behaviors such that all of the other students were removed from the classroom. • On December 13, 2016, Student threatened Harris, telling her he was going to stab her and that he knew the location of the knife, resulting in a request by Harris that Student be assessed medically. • On January 5, 2017, Student eloped, destroyed things in the hall, broke a coffee maker, and pushed over chairs. • On January 10-11, 2017, Student eloped and refused to do any school work. • On January 25, 2017, Harris reported in her discipline referral that Student “began his day off task, running around and away from school staff. He had to be cornered by 2 staff members and escorted to [room] Once inside [room], [he] began destroying the classroom and furniture.” She then described Student taking apart the teacher’s desk and trying to hit or throw the pieces at Harris. This led to an in-school suspension and a parent contact. • On January 31, 2017, Burkins made a disciplinary referral with a time of “all day every day” for Student’s failure to come to class, disruption, destruction of property, and bullying of other students. • On February 1, 2017 Seawood-Miller reported that Student was running around, throwing things, kicking and biting and using profanity. This led to ISS. • On February 2, 2017, Student refused to stay in the classroom and continued to roam the building and run when confronted by staff members. • On February 7, 2017, Student again roamed the hallways and left the classroom without permission. • On March 3, 2017, Student eloped from Seawood-Miller’s office and when brought back, he hit, kicked and punched the monitor. He then threw over a table, threw a picture against the wall and kicked the school nurse. • On March 9, 2017, Student tried to elope from the building and hit and kicked Burkins, among other behaviors.
18
94. In January, 2017, Burkins sent an e-mail to Principal Miller-Seawood, counselor
Harris, and others that she was out of options and resources to provide “adequate academic
instruction to insure the educational development” of Student.
95. On February 8, 2017, Harris submitted a request for response form to the District
asking for interventions and/or help with Student and providing information of what has already
been done to assist him.
96. On February 10, 2017, Peabody’s principal sent the District a request for response
regarding Student. The request noted Student’s recent hospital admission and potential danger to
others. The request also noted that Student was previously evaluated but did not qualify for
special education services; however, it failed to mention anything about the IEE performed by
the Miriam Learning Center.
97. On February 21, 2017, a Section 504 meeting was held and Student received a
504 plan.
98. According to Harris, the District did not hold an IEP meeting at this time or
earlier because no one requested one. She characterized Student’s needs as being a product of
Student’s traumatic life and lack of medical services.
99. On February 24, 2017, Grandparent verbally requested a special education
evaluation.
100. Miller-Seawood had not considered sending Student for an IDEA evaluation at
any point before this.
2017 IEP
101. On March 6, 2017, the District conducted an IEP meeting and issued an “Initial
Evaluation Report.” During the IEP team found that:
19
[Student] demonstrates the following characteristic(s) of Emotional Disturbance: an inability to learn that cannot be explained by intellectual, sensory, or health factors / an inability to build or maintain satisfactory interpersonal relationships / inappropriate types of behavior or feelings under normal circumstances / a general pervasive mood of unhappiness or depression / a tendency to develop physical symptoms for fears associated with personal or social problems… A comprehensive school evaluation was completed on September 22, 2016 and includes through observation of behavior in different environments and an in-depth social history. This report documents [Student’s] present level of academic performance and his emotional and behavioral concerns at home and school. During the 2016 school year, [Student] consistently earn grades of D's and F's in all core subjects. Behavior issues including verbal abuse, fighting, chronic, disruptions, and truancy. The diagnostic team certifies that [Student] is eligible to receive special education services.[ ]
102. The Initial Evaluation Report referenced the findings of the IEE. No additional
testing was performed. The following information was considered at the IEP meeting.
• December 2016 vision assessment
• Teacher (Burkins) observations from August 2016 – March 2017
• Interview with Grandparent
• School Health Records from October 2016
• Mercy Hospital Records
103. The IEP team found Student qualified under the category or diagnosis of ED. The
IEP team did not assess Student for OHI.
104. On March 15, 2017, the District issued an IEP for Student. The IEP called for
placement in a separate day school facility.
105. Almost two years passed from the time when the IEP team found Student
ineligible for special education services, but found insufficient information at that time to
diagnose Student with ED (April 17, 2015) until the Student was determined to have an ED
(March 15, 2017).
20
Great Circle and Current Medical Status
106. On March 16, 2017, Student enrolled at Great Circle. His problem behaviors
continued, and he remains below grade level. However, he made progress in October 2017.
107. Bufe believes Student has made progress at Great Circle. He has identified
friends and supports within school. Student continued on his Concerta, increased to 45 mg on
April 26, 2017, with Abilify remaining at 4 mg. Bufe then increased Concerta to 54 mg on July
26, 2017 with Abilify remaining at 4 mg. In October, 2017, Bufe decreased Abilify to 2 mg and
added Intuniv 1 mg to the Concerta 54 mg prescription.
Conclusions of Law
This Commission has jurisdiction over this case. Section 162.961, RSMo 2016. The
burden of proof is on the party seeking relief, in this case Grandparent. Schaffer v. Weast, 546
U.S. 49, 62 (2005). Grandparent must prove her case by a preponderance of the evidence. Tate v.
Dept. of Social Services, 18 S.W.3d 3, 8 (Mo. App., E.D. 2000). A preponderance of the
evidence is “evidence which as a whole shows the fact to be proved [is] more probable than not.”
State Bd. of Nursing v. Berry, 32 S.W.3d 638, 642 (Mo. App. W.D., 2000).
We must judge the credibility of witnesses, as well as the weight and value of the
evidence. Faenger v. Petty, 441 S.W.3d 199, 204 (Mo. App., W.D., 2014). We have the
discretion to believe all, part, or none of the testimony of any witness. Dorman v. State Bd. of
Registration for the Healing Arts, 62 S.W.3d 446, 455 (Mo. App. W.D., 2001).
Evidentiary Issues
At hearing, we took several evidentiary objections with the case. The District objects to
Kennedy’s expert testimony regarding recommendations based on findings of her report but not
contained in the report itself. The District argued that Kennedy’s testimony regarding the
findings of her report went beyond the expert reports disclosed by Grandparent. Kennedy was
21
identified as an expert and her IEE was produced. There were no other reports. Kennedy is
similar to the “treating physician” who is a combined fact witness/expert witness. We overrule
the objection to her testimony as an expert witness.
The District also objects to a specific question to Kennedy regarding the findings in the
District’s April 2015 IDEA evaluation. We sustain the objection. Kennedy was identified as an
expert witness with regard to her own IEE, not the April 2015 IEE. During a recorded
prehearing conference, Grandparent represented that Kennedy’s IEE would be the only expert
report introduced at hearing. Unlike the previous question that related directly to Kennedy’s
report, these questions about the 2015 IDEA evaluation exceeded the scope of the expert reports
disclosed to the District.
The District objects to Exhibit 32 on the ground that it violates the IDEA’s “five-day
rule,” which provides that any party has the right to “[p]rohibit the introduction of any evidence
at the hearing that has not been disclosed to that party at least five business days before the
hearing[.]” 34 C.F.R. § 300.512(a)(3). Exhibit 32 is Peabody’s response to a social security
determination. This exhibit was not disclosed. We sustain the objection.
Issues of the Case
Grandparent argues that the District denied Student FAPE by failing to make educational
diagnoses of OHI or ED after Student’s initial IDEA evaluation on April 17, 2015.
Alternatively, Grandparent argues that District denied Student FAPE through its continued
failure to evaluate and determine that Student was eligible for special education.
Under the IDEA, all children with recognized disabilities are entitled to FAPE designed
to meet their unique needs. 20 U.S.C. §1400(d)(1)(A) and 34 C.F.R. §300.1(a). Missouri’s State
Plan for Special Education (2016) (State Plan) generally defines FAPE as regular and specialized
special education and related services provided at public expense, under public supervision and
22
direction without charge to the parents that meet the educational standards of the state
educational agency and are provided in conformity with the Student’s IEP. State Plan,
Regulation I, page 3. The IDEA does not prescribe any substantive standard regarding the level
of education a disabled child should be accorded. Board of Education of Hendrick Hudson
Central School District, Westchester County, et al. v. Rowley, 458 U.S. 176 (1982). It does
require the school district to “provide a disabled child with such special education and related
services ‘in conformity with the [child’s] individual education program.’” Endrew F. v. Douglas
County School District RE-1, 137 S.Ct. 988, 994 (2017).
Educational authorities must identify and evaluate disabled children, develop an IEP for
each one, and review every IEP at least once a year. 20 U.S.C. §§1414(a)-(c), (d)(2) and (4).
They must also re-evaluate a student every three years. Id. §1414(a)(2)(B)(ii); 34 C.F.R.
§300.303(b)(2). Each IEP must include an assessment of the child’s current educational
performance, articulate measurable educational goals, and specify the nature of the special
services that the school will provide. Id. §1414(d)(1)(A).
April 2015 IDEA Evaluation
Grandparent alleges that the District denied Student FAPE because his April 2015
evaluation did not provide for an educational diagnosis of OHI or ED and the IEP team failed to
assess Student for OHI entirely. As argued by the District, courts have held that, when
considering the adequacy of an IEP, it is the student’s individual needs that are more important
than whether the identified diagnosis is correct. In Fort Osage R-1 Sch. Dist. v. Sims, 641 F.3d
996, 1004 (8th Cir. 2011), the court stated:
… we believe that the particular disability diagnosis affixed to a child in an IEP will, in many cases, be substantively immaterial because the IEP will be tailored to the child’s specific needs … Instead, as with any other purported procedural defect, the party challenging the IEP must show that the failure to include a proper disability diagnosis
23
‘compromised the pupil's right to an appropriate education, seriously hampered the parents' opportunity to participate in the formulation process, or caused a deprivation of educational benefits.’ An education diagnosis is different from a medical diagnosis. According to the State
Plan, the definition of ED for purposes of an educational diagnosis is:
“Emotional Disturbance” means a condition exhibiting one or more of the following characteristics over a long period of time and to a marked degree that adversely affects a child’s educational performance:
The criteria for an initial determination of ED are:
A. Through evaluation procedures that must include observation of behavior in different environments and an in-depth social history, the child displays one of the following characteristics: 1) an inability to learn that cannot be explained by intellectual, sensory, or health factors; 2) an inability to build or maintain satisfactory interpersonal relationships with peers and teachers; 3) inappropriate types of behavior or feelings under normal circumstances; 4) a general pervasive mood of unhappiness or depression; and, 5) a tendency to develop physical symptoms or fears associated with personal or social problems. B. the characteristic(s) must have existed to a marked degree and over an extended period of time. In most cases, an extended period of time would be a range from two (2) through nine (9) months depending upon the age of the child and the type of behavior occurring. For example, a shorter duration of disturbance that interrupts the learning process in a younger student might constitute an extended period of time. Difficulties may have occurred prior to the referral for evaluation; and, C. the emotional disturbance adversely affects the child’s educational performance. NOTE: Manifestations of an emotional disturbance can be observed along a continuum ranging from normal behavior to severely disordered behavior. Children who experience and demonstrate problems of everyday living and/or those who develop transient symptoms due to a specific crisis or stressful experience are not considered to have an emotional disturbance.[ ]
The State Plan does not recognize ADHD as an educational diagnosis requiring special
education. Rather, it represents a potential component of the educational diagnosis of OHI. The
State Plan defines OHI as:
24
“Other Health Impairment” means having limited strength, vitality, or alertness, including a heightened alertness to environmental stimuli, that results in limited alertness with respect to the educational environment that is due to chronic or acute health problems, such as asthma, attention deficit disorder or attention deficit hyperactivity disorder, diabetes, epilepsy, a heart condition, hemophilia, lead poisoning, leukemia, nephritis, rheumatic fever, sickle cell anemia, and Tourette Syndrome, and adversely affects a child’s educational performance.
A student meets the criteria for an initial determination of OHI when:
A. a health impairment has been diagnosed by a licensed physician, licensed psychologist, licensed professional counselor, licensed clinical social worker, or school psychologist, and B. the health impairment adversely affects the child's educational performance.[ ]
With respect to ED, the District argues that Student’s behaviors are attributable to
traumatic events in his life, and therefore, the State Plan prohibits the District from considering
Student emotionally disturbed. Specifically, the District points to the absence of Student’s father
and Student’s relationship with his mother or lack thereof. The District’s witnesses referred to
Student as being “in transition” since he moved from his mother’s home to Grandparent’s home,
with his mother still living in the neighborhood. We find this argument unpersuasive.
While we agree that the situation may have been upsetting to Student generally, the
evidence does not show that Student’s behavior sprung from this transition. The move occurred
in August 2014, and Grandparent provided a more stable home environment than Student’s
mother. Furthermore, Student had already demonstrated unacceptable behavior in preschool and
his first year of kindergarten while living with his mother.
The State Plan only excludes consideration of “transient” behaviors attributable to a
“specific crisis or stressful experience.” Student’s behaviors are not transient, nor are his
behaviors attributable to a specific crisis or experience. Throughout his time at Peabody, Student
demonstrated poor behavior that escalated into violence. In each year of school, Peabody
25
suspended or sent Student home early for his behavior multiple times. The absence of Student’s
father and his mother’s problems are pervasive, ongoing realities for Student.
Nonetheless, we do not find that the District denied Student FAPE by not determining he
met the requirements for ED. Although the District would later find that Student had ED, its
failure to diagnose a disability earlier does not constitute a FAPE violation per se – especially in
the case of ailments that are difficult to diagnose. See D.K. v. Abington Sch. Dist., 696 F.3d 233,
249 (3d Cir. 2012). ED is such a case because the State Plan requires, in vague terms, that its
characteristics present to “a marked degree and over an extended period of time.” Making
matters more confusing, the significance of duration varies depending on the student’s age.
By April 2015, Student had already shown significant signs of behavioral problems and issues
with his peers. However, Student was only seven years old and had attended school for less than
three full semesters. Therefore, we find that the District did not err by finding Student did not
meet the criteria for ED.
With respect to OHI, the District argues that Grandparent failed to meet her burden to
show that Student’s ADHD adversely affected his education. We agree. The record indicates
that the primary issue affecting Student’s education is his behavior. Grandparent did not present
evidence that correlated Student’s ADHD to his behavior or any other deficiency in his
education. Nor did expert witnesses specifically explain how ADHD might relate to Student’s
poor behaviors or educational difficulties.
The District does not address Grandparent’s contention that the District denied Student
FAPE by failing to assess him for OHI. 20 U.S.C. § 1414(a)(1)(A) requires the District to
conduct a “full and individual initial evaluation.” The State Plan clearly delineates the close
relation between OHI and ADHD. Having received a diagnosis of ADHD, Student met the first
of two requirements for OHI. Although the District acknowledged Student’s ADHD diagnosis in
26
the April 2015 evaluation, it did not assess Student for OHI by considering whether his ADHD
adversely affected his education. When asked why this assessment did not take place, Harris
could not provide any answer. This omission constitutes a procedural violation of the IDEA
initial evaluation requirements.
A procedural violation only results in a denial of FAPE if the violation “compromised the
pupil's right to an appropriate education.” Sch. Bd. of Indep. Sch. Dist. No. 11 v. Renollett, 440
F.3d 1007, 1011 (8th Cir. 2006). The two specific situations in which this occurs are when a
procedural violation results in a loss of educational opportunity or the parent’s opportunity to
participate meaningfully in the IEP formulation process. See Timothy O. v. Paso Robles Unified
Please take notice that this is a final decision of the Administrative Hearing Commission
and you have a right to request review of this decision. Per §162.962, when a review of this
decision is sought, either party may appeal as follows:
(1) The court shall hear the case without a jury and shall: (a) Receive the records of the administrative proceedings;
(b) Hear additional evidence at the request of a party; and
(c) Grant the relief that the court determines to be appropriate, basing its decision on the
preponderance of the evidence;
(2) Appeals may be taken from the judgment of the court as in other civil cases;
(3) Judicial review of the administrative hearing commission's decision may be instituted by filing a petition in a state or federal court of competent jurisdiction. Appeals to state court shall be filed within forty-five days after the receipt of the notice of the agency's final decision;
(4) Except when provided otherwise within this chapter or Part 300 of Title 34 of the Code of
Federal Regulations, the provisions of chapter 536 are applicable to special education due process hearings and appeal of same;
(5) When a commissioner renders a final decision, such decision shall not be amended or modified by the commissioner or administrative hearing commission. The right to appeal is also addressed in 34 C.F.R. §300.516.
