Mars Area School District | Case 6289-05-06 | 2006-03-12

This is a redacted version of the original hearing officer decision. Select details may have been removed from the decision to preserve anonymity of the student. The redactions do not affect the substance of the document. PENNSYLVANIA SPECIAL EDUCATION HEARING OFFICER DECISION Child’s Name: N.S. Date of Birth: xx/xx/xx Date(s) of Hearing: 2/27/06; 2/28/06; 3/1/06 CLOSED HEARING ODR NO. 6289/05-06 Parents Parents’ Representative: Parent Lilian Akin, Esq. 428 Connor Street Pittsburgh, PA 15207 School District: District Representative: Mars Area School District Thomas Breth, Esq. 116 Browns Hill Road Dillon, McCandless, King, Coulter Valencia, PA 16059 128 W. Cunningham St. Butler, PA 16001 Date of Decision: 3/12/06 Hearing Officer: Margaret Drayden, Esq.

2 Précis This expedited hearing was requested by Parent after Student, an identified child in need of special education, violated Sc hool District Board Policy Nos. 730 (entitled: Discipline) and 735 (entitled: Terroristic Threats/Acts) twice within the space of approximately six weeks. Student, currently a 6 th grade student, was initially evaluated (the Evaluation Report is hereafter referred to as an “ER”) on 1/27/01, while in 1 st grade, as eligible as a student with Other Health Impairments (“OHI”) due to his symptoms of Attention Deficit Hyperactivity Disorder (“ADHD”). However, when re-evaluated during the 4 th grade, due to the results of the 3/31 /04 ER, his eligibility was changed to Learning Disability: Written E xpression with a secondary di sability category of Speech and Language (“S/L”). On Wednesday, December 14, 2005, students were discussing activities for a student government day and Student [made a remark]. A Manifestation Determination team determined that Student’s behavior wa s not a manifestation of his disability. Student was suspended for 10 days. 1 On Friday, January 27, 2006, Student broke school rules again by [making another remark]. Yet another Manifest ation Determination team found Student’s behavior was not a manifestation of his disabi lity. Parent contends Student’s impulsivity due to his ADHD interferes with his ability to control his inappropriate behaviors and thus the Manifestation Dete rmination team should have found his behaviors stemmed from his disability and he should not face a Sc hool Board disciplinary meeting, with the possibility of being expelled from school. 1 This was subsequently shortened to 7 days.

3 Stipulations 1. Student’s date of birth is [redacted].. 2. Student is currently eligible for special education as a child identified as having a specific learning disability in written expression and a speech and language impairment. 3. Student currently attends Middle School in the 6 th grade. Findings of Fact 1. Mr. G, school psychologist , evaluated Student on 2/18/06. This psychologist tests approximately 130-150 students per year and works with many ADHD children and learning disabilities and is qualified to interpret the impact of a child’s ADHD on his education. In preparation for Student, he reviewed records from pre-school to present, including teacher’s reports, IEPs and evaluations. (NT at 35, 37-40, 84.) 2 2. Mr. G’s evaluation took some 3 hours a nd he administered a battery of tests, including: Wechsler Intelligence Scale for Children – Fourth Edition (“WISC-IV”), various sub-tests from the Woodcock-Johnso n, the Integrated Vi sual and auditory Performance test (“IVA”). (NT at 37.) 3. Student’s performance on the WISC-IV was very similar to past evaluations, such as the 3/24/04 evaluation c onducted by the School District . His overall score was “solidly in the average range, as was his score in the perceptual reasoning.” (NT at 40) 4. Student’s working memory index fell within the extremely low range and is a significant weakness for Student, just as it was the last time Student was evaluated. This is highly significant because “it’ s certainly susceptible to atte ntion. It’s susceptible to that specific parameter as far as working me mory goes, as to holding on to a sequence of information that’s presented.” (NT at 41-42, 94-95.) 5. Student’s processing speed – which is the ability to compare and contrast information quickly and efficiently – was sligh tly below average; again, equivalent to his last evaluation. (NT at 42.) 6. The Woodcock-Johnson generally showed ma th skills as a strength; basic reading skills were slightly below average, and or al language skills were “on the cusp of average/low-average.” (NT at 42-43.) 2 Parents’ exhibits are noted as “P-”; District exhibits are noted as “SD-”; Hearing Officer exhibits are referenced as “HO-”; Noted Transcript is referenced as “NT”; Findings of Fact are noted as “FF”.

4 7. The IVA is a computer test that last s 15 minutes after a 5 minute training and Student had to click a mouse whenever he sa w or heard the number “1”. The purpose is to see if the Student can inhibit the urge to click the mouse when the alternate number (“2”) is seen or heard. If overly impulsive, Student will click on the wrong number – and gives the evaluator “a good idea of how well a child is able to basically be self-motivated to sit and focus.” Student’s scores were from very low to just below average. (NT at 44- 45.) 8. Mr. G defined ADHD as “a network of highl y interactive contro ls or processes over conscious mental functioning…it’s the abi lity to regulate and monitor those parts of the brain that are directly involved in the performance of any specific task…mental energy control, processing controls and pr oduction controls, and th e 3 control systems themselves are highly interactive. They ’re not selective. They don’t operate independently of one another….They woul d affect cognitive functioning, academic functioning, social functioning and behavioral functioning. (NT at 50-52.) 9. Mr. G opined that Student’s ADHD “has a di rect relationship with his inability to respond appropriately in a classroom setting or a social situation.” And Mr. G disagreed with the School District’s position that Student’s behavior was not a manifestation of his disability because part of ADHD is his “poor ability to preview a nd inhibit his impulses to answer inappropriately or say inappropriate things.” (NT at 55-56.) 10. Mr. G opined that since Student has a ttention deficits and memory weaknesses and that since Student had a sec ond incident so shortly after the first, that suspension is not an effective means of helping him. (NT at 57.) 11. In viewing Student’s IE P, Mr. G found numerous recommendations consistent with the needs of students with ADHD. (NT at 58-61.) 12. Mr. G opined that based on Student’s having had a lengthy suspension followed by the same behavior, that Student needed a functional behavior analysis and then a behavior plan. (NT at 61-62.) 13. Mr. G opined that – l ooking at Student’s recent history – there is a good probability that “he will regress and do so agai n,” that “without behavioral interventions as part of his IEP, he’s going to be a child who is going to be lost.” (NT at 63.) 14. Mr. G testified that due to impulse c ontrol difficulties children with ADHD have a “proclivity for such incidents [such as threatening violence]”. (NT at 73, 75.) 15. Mr. G opined that threats of violence are not a manifestation of a learning disability in written expression with speech and language services. (NT at 82-83.) 16. Mr. G testified that a child does not need to be identified as emotionally disturbed (“ED”) or OHI to receive a be havior plan and that an IE P for this Student requires a behavior plan in order to be appropriate. (NT at 90-93.)

5 17. Student currently sees both a therapist a nd a psychiatrist. He sees the therapist every other week and the psychiatrist once a mo nth. He has seen his psychiatrist since he was 4 years old; Student is currently [pre-teenaged]. (NT at 103.) 18. Student is currently on Desipramine, Clonidine and Valproic Acid. He takes these medications for ADHD, depression, appetite, sleeplessness, and migr aines. (Id., 166-68, 272-374.) 19. Psychiatrist diagnosed Student as ADHD at age 4. (NT at 104, 193-94.) 20. Student currently has a resource coordina tor; he had wraparound services starting at the age of 4-5, which requires a mental health diagnosis. (Id.) 21. Parent is currently reapplying fo r wraparound services. (NT at 105.) 22. Student has had behavioral issues sin ce infancy and he had 13 broken bones as a baby before coming to Parent at the age of 10 months. Student wa s born prematurely at 29-week gestation in [redacted]. Prematur e children have a greater tendency for ADHD, learning difficulties, and various “brain problems”. (NT at 106, 211.) 23. Due to emotional issues, Student needs Parent to lay out his clothes daily; he experiences frustration easily and “goes over the edge” if his things are moved. (NT at 108.) 24. Students is highly distractib le at home – even a piece of lint can sidetrack him; and he requires assistance with anything that requires research, writing, or putting things in an order. (NT at 109.) 25. Student is easily upset and either gets angry or will yell, scream or cry; he’ll throw, hit, stomp, and has difficulty with anger management. (NT at 110, 113-15.) 26. Student has difficulty with social situations and is unable to distinguish between other children being mean to him and showi ng friendship – he confuses the two. (NT at 111.) 27. Student is physically quite small for his age; he weighs approximately xx pounds and is shorter than most children his age. (NT at 112, 169-70, 210.) 28. Student’s psychiatrist treats Student on a regular weekly basis and opined that Student needs a behavior plan, “otherwise [Student] will keep having these sorts of issues.” (NT at 103, 219-200, 219-20.) 29. There’s difficulty in ascert aining whether Student’s actions were or were not the direct result of his ADHD because no adult wi tnessed either incident – all reports came from children. (NT at 215-217.)

6 30. Student’s psychiatrist de scribed the two school incidents as “seem[ing] very impulsive”, but that these ar e not isolated behaviors – St udent is having problems at home and this is part of a “general pattern”. (NT at 215, 217.) 31. The psychiatrist noted that Student’s IE Ps appear to addres s some of Student’s attentional needs. (NT at 217-18. 32. Student’s psychiatrist is certain Student has ADD and St udent has been on a variety of medications over the years. (NT at 193-94.) 33. Psychiatrist reported Studen t has been working on coping strategies for issues of (1) impulsivity re losing his temper, wanti ng to hurt people, wanting to hurt himself, getting upset; (2) adoption issues; and (3) family issues. (NT at 201-02.) 34. Student admits to psychiatrist his probl ems with impulsivity, conflicts with other children, how he hasn’t thought about his actions before he acted, and how bad he feels afterward. He discussed conflicts and problems with other students and his frustration, as well as his difficulties with being bullied. (NT at 202, 209.) 35. Student’s psychiatrists opi ned that now that Student is in middle school and students are required to accept more responsibility, that his problems with inattention and concentration can pose additional problems. (NT at 207-208.) 36. While medications help approximate ly 75% of children with ADHD, Students falls into the other 25%. Stude nt still exhibits ADHD-type behaviors despite medication. (NT at 232, 254-56, 271.) 37. Student would exhibit more ADHD-type be haviors if he was not on medication. (NT at 275.) 38. Students with ADHD are more prone to impulsively threaten people. (NT at 260- 61.) 39. Student needs coaching to enable him to learn to handle his behaviors. (NT at 251.) 40. Impulsivity can be exhibited with humor, not just anger, but it is still part of ADHD. (NT at 275-76.) 41. Attempts at disciplinin g Student through suspensions aren’t working because Student’s actions are the results of his impulsivity. (NT at 280-81.) 42. Student is getti ng good grades in school. 3 (NT at 294, 313; P-7, P-13, D-1.) 3 There were 2 exceptions in the first marking period: Technology Ed. – a grade of 49 because Student did not complete his project due to exhibiting “behavior [which] interferes with learning potential” and

7 43. Student’s Computer Applica tions teacher (“C.A. teacher”) testified that Student is “a pleasant young man. He’s polite. He’s eager to please. He likes to help others.” And she has not seen any areas of concern behavior ally that is any different than with any other student. (NT at 294.) 44. This same C.A. teacher then testified Student “has trouble following directions and following steps in a sequence….[he] ha s trouble completing that activity without asking a question. And when I prompt him, he has trouble then following those same steps. He needs prompted through almo st the entire sequence on newly learned subjects.” She needs to redirect him more with independent work than when there’s more structured, direct teaching. Teacher sees these behaviors about once a week, and has Student in class every other day – so approximately ½ to 1/3 of the time. (NT at 296- 97.) 45. The C.A. teacher completed an IEP team Conference Report, dated 1/9/05, where she listed one “x” for “Difficulty in maintain ing attention” and being “Easily influenced by others”; two “x’s” for being “Easily di stracted” and having “Difficulty retaining information over time”; and three “x’s” for “Difficulty recalling deta ils/facts”. She also wrote that Student “struggles to keep up with the pace of the class. On independent activities, [Student] often needs assistance in executing commands. Nonetheless, I enjoy having [Student] in computers. He is a wonderful student to work with.” (P-6 at 4.) 46. The C.A. teacher doesn’t have opportunities to observe Student in social settings. (NT at 306.) 47. Student’s Social Studies teacher (“S.S. teacher”) has not observed Student outside of class but has not observed any behavior diff iculties in class; the S.S. teacher has a highly structured class setting with only 14 students. (NT at 309, 314-15, 318.) 48. The S.S. teacher reported that he check ed off “Difficulty retaining information over time” and “difficulty recalling details/f acts” on the IEP team Conference Report, dated 1/10/06, because “even though the work was finished, he had some difficulty recalling a lot of those facts.” His handw ritten comment was Student “really is not a problem in class.” (NT at 311; P-6 at 5.) 49. The Technology Ed. teacher (“T.E. teacher”) had Student for the first 9 weeks of school and never saw any untoward behaviors, but he would redirect Student “quite often”, explain that Student needed to “stay on task”, and while it appeared that Student understood what he was told, Student still di dn’t follow instructions. Consequently, because he would repeatedly get off task by helping other students, Student failed to complete his class project. (NT at 321-22, 325-28, 330-31, 337.) Language Arts – a grade of 70, which is a “D”. Other grades are Chorus: 94; P.E.: 83; Computer Applications: 88; Math: 83; Science: 89; and Social Studies: 90, which reflect a low (83) of C+ to a high (94) of A-. (P-13.)

8 50. The T.E. teacher testified that Studen t had difficulty with multi-step projects, needed reminders and redirection, but didn’t find that to be unusual. (NT at 333.) 51. The IEP Team Conference Report form wa s also completed by the P.E. teacher who noted Student was “progressing well” but checked off “Difficulty maintaining attention” and “Easily distracted”. (P-6 at 1.) 52. The IEP Team Conference Report form was completed by the Language Arts teacher who checked many areas of “problems frequently observed.” The checked areas were: Listening comprehension: difficulty following verbal dire ctions; under Reading: difficulty with basic skills, difficulty with comprehension, difficulty reading assigned text(s) or material presented; under Written expression: difficulty spelling, difficulty with mechanics of writing, difficulty organizi ng sentences and ideas into paragraphs; under Daily Work: incomplete homework assignments, poor test grades, does not complete class assignments; under Memory: di fficulty retaining information over time, difficulty recalling details/facts. In her ha ndwritten comments she wrote: [Student] failed to turn in an assignment worth 100 points. He was reminded of it on several occasions, yet did not do the work.” (Id. at 2.) 53. This same form was completed by the Science teacher who checked the following frequently observed problems: Oral expr ession: difficulty e xpressing thoughts and ideas; Reading: difficulty with comprehensio n; Written expression: difficulty spelling; Attention/Organization/Activity Level: Easily distracted at times. The handwritten comment was: [Student] works hard in Science class. (Id at 3.) 54. On 1/10/06, which was after the first 12/ 14/05 incident, and before the second on 1/27/06, the Educational Diagnostician observed Student in his Language Arts class for approximately 45 minutes. She observed (1) to see if he was attending and (2) to help the teacher begin to collect information on Student ’s attention/inattention issue. (NT at 420- 24.) 55. The Educational Diagnostician informally noted for approximately 5 minutes at the beginning, the middle, and the end of the class whether or not Student was attending and found nothing of concern. Based on that single observation, she agrees that Student’s behavior was not a manifestation of his disability. (NT at 424-26, 433.) 56. The Educational Diagnostician made no written report of the observation for the record; she has never met or spoken to Student. (NT at 426, 433.) 57. The Educational Diagnostician chose to observe Student in his Language Arts class because his IEP identifies him as ha ving a disability in written expression and speech and language, and she beli eved that to be the appropr iate place to get baseline information. (NT at 427.) 58. The School Psychologist has never met Student nor conducted a clinical interview, but is familiar with Student through coordinating the 2004 reevaluation while

9 Student was in 4th grade. (NT at 444, 454-55, 477.) 59. The School Psychologist participated in both Manifestation Determination team meetings and agrees that Student’s behavior was not a result of his currently identified disabilities; and, his opinion is that Stude nt’s ADHD does not pr event Student from accessing his education (NT at 452-54, 472.) 60. No child at the Middle School ha s a behavior plan (NT at 392, 415.) 61. The Speech and Language Support Evalua tion Report, dated 9/5/03, concluded that Student continued to need S/L support. The ER also reported th at scores indicated “impaired short term memory abilities for verbally presented information.” (P-1.) 62. Initial ER, dated 1/27/01, when St udent was in first grade reported, inter alia : Student took Ritalin (Concerta) for his ADHD ; that Student had significant difficulty sustaining attention and follo wing directions, needed fre quent prompts and teacher assistance to remain on task; and was found e ligible as a student with “Other Health Impairments” because his ADHD adversely impacted his educational performance. (P-2) 63. The 3/31/04 Revaluation Report observed Student’s interaction with the school psychologist as “easy to esta blish and to maintain…he made appropriate efforts towards the testing however, was easily distracted a nd sometimes demonstrated inattention and poor concentration. [Student] repeatedly look ed at the clock and asked how much more time was left until lunch.” It noted that Student was currently taking medication for ADHD and found that he was eligible as a st udent identified as learning disabled in written expression. (P-3) 64. The 5/3/04 Addendum to the 3/31/04 repor ted the additional data collected due to Parent’s concern about Student’s ADHD and perceived academic needs in the areas of reading and math. It concl uded that Student’s behaviors associated with ADHD were within average range and he did not meet the criteria as a student identified as OHI. (Id.) 65. Student’s 5/16/05 IEP provides Itineran t level of support for Learning Support and S/L; the specially designed instruction (“ SDI”) included various modifications that are often used with children with attention deficits, such as: redirecting to task; individual assistance to begin tasks; monitor tests read on his own – direct to take a second look at specific questions as needed; additional time for testing or in-class assignments; having him repeat directions befo re beginning tasks, pr eferential seating; use of assignment book, and creating an enhanced listening environment. (P-4.) 66. The IEP Team Conference Report, date d both 4/13 and 5/18 (for Student’s 5 th grade), listed Student’s weaknesses as: organization of materials, focusing on tasks.” (P- 5.) 67. The Nurse’s Report dated 12/11/00, noted that Student was ta king Concerta for his ADD. (P-14.)

10 68. Correspondence from Student’s treating ps ychiatrist dated 7/20/04, states that Student has been in treatment since 3/3/98 and is diagnosed with ADHD. (P-15.) 69. Correspondence from Student’s treating psychiatrist dated 12/14/05 to School District states a DSM-IV, Axis I diagnosis of ADHD, Rule out Depr ession; Axis IV: of Moderate; and an Axis V: GAF score of 50. 4 Doctor states Stude nt can be impulsive, disorganized and unfocused, that he has anger issues and gets easily frustrated. (P-16.) 70. The 12/15/05 Memo from Mr. C and Mr . M to Dr. P desc ribed Student’s homeroom comment [redacted]. Student was suspended for 10 school days, referred to the SAP team, and referred to the Superintendent for an expulsion hearing. The pupil had reported Student’s statement to the principal and when asked, “Did you feel threatened?” the pupil replied, “Yes.” Student told Parent his comment wa s a joke. (P-8; NT at 139, 355, 361-62, 364.) 71. The 12/20/05 Manifestation Determinati on Worksheet concluded that Student’s behavioral incident was not a manifestation of his disability.(P-9) 72. On 1/2/06 the Board had a disciplinary hearing; Student’s suspension was limited to 7 days and he returned to school on 1/3/ 06. Parent requested the IEP team meet; the Team met on 1/18/06 but refused to add ADHD to the IEP and refused a Behavior Plan. (NT at 126-27. 364-65.) 73. The 1/30/06 Memo from Mr. C and Mr. M to Dr. P described Student’s comment on 1/27/06 while in Chorus. After a pupil fals ely accused Student of [taking a specific action, and Student made a remark]. Pupil wa sn’t sure if Student was serious or not. Parent was informed that Student was susp ended for 10 days, that there would be a manifestation determination meeting the following Tuesday afternoon or Wednesday morning. District didn’t want to violate Student’s rights by being suspended more than 15 days, so felt that the manifestation determina tion hearing had to be held quickly because the Board disciplinary meeting was scheduled for 2/6. Parent stated she wanted legal representation. Student was referred to the SAP team, and referred to the Superintendent 4 The Diagnostic and Statistical Manual of Mental Disorders (“DSM-IV”), published by the American Psychiatric Association, uses a multi-axial approach. Axis I lists clinical (mental) disorders; Axis II – developmental disorders and personality disorders; Axis III – physical conditions; Axis IV – severity of psychosocial stressors; and Axis V – global assessment of functioning, which is the level of functioning at the present time and the highest level within the past year. Axis IV represented the clinician’s estimation of the client’s overall severity of life stress in the past year. There are six categories/scores associated with this Axis: 1. No stress; 2. Mild stress; 3.Moderate stress; 4. Severe stress; 5. Extreme stress; and 6. Catastrophic stress. Axis V (Global Assessment of Functioning) has scores ranging from 1 to 100, with 100 being optimal. A score in the 91-100 range shows no symptoms impairing functioning. The DSM-IV lists a score of 41-50 as “Serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) OR any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job).”

11 for an expulsion hearing. (P-10; NT at 365-72) 74. On 1/27/06, Mr. C and Mr. M wrote to Pare nt informing her that there would be a Board of School directors meeting on 2/6/06 at 9:00 a.m. to determine whether or not Student’s suspension should be continued an d/or whether he should be expelled on a permanent basis. (P-11) 75. On Monday, 1/30/06, the Dist rict called and left word on Parent’s phone that the manifestation determination would be held on Wednesday at 9:00 a.m. Parent called and explained that neither she nor her attorney c ould attend that day, that it needed to be on 2/6/06. The District’s position was that the Parent is invited to attend, but not a required member. (NT at 123-24, 152-54, 518.) 76 The 2/1/06 Manifestation Determinati on Worksheet concluded that Student’s behavior was not a manifestation of his disa bility. Parent was called and told that the meeting was going on and she didn’t need to be present. Parent never received any call from the District asking for her input. (P-12; NT at 124-25, 154, 432-33.) 77. The [redacted] School District Board Policy No. 735, entitled “Terroristic Threats/Acts defines “Terroristic Threats” as: “Terroristic Threats” shall mean a threat to commit violence communicated with the intent to terrorize another, to cause evacuation of a building, or to cause serious public inconvenience, in reckless disregard of the risk of causing such terror or inconvenience. (18 PA C.S.A. Sec. 2706)” (D-2) 78. The [redacted] School District Board Poli cy No. 730, entitled “Discipline” lists “Verbal Abuse” as “Using statements which threaten or harm another person.” The three levels of punishment for this infraction are: (1) and (2) Suspension and Notify Police; (3) Suspension, Notify Police, Board Hearing. It is District policy to go to a Board hearing for any statement that is a threat. (D-3; NT at 370.) 79. Written statements by Student and the two pupils involved in the 1/27/06 incident. (D-4) 80. No adults heard Student’s comments made on either occasion. (NT at 158, 355- 58, 368.) 81. Student told Parent he’s had other inci dents which were not reported. (NT at 158- 59.) 82. Student has had similar in cidents at home over the pa st 6 months. (NT at 218- 19.) 83. Student says things impulsively – he’s unable to stop. (NT at 159.) 84. Neither Parent nor Parent’s school psychologist know of any other pupil Student’s age who has had 2 expulsion hearings for such behavior in such a short time. (NT at

12 160.) 85. Principal testified that no other student in his school has had 2 or more expulsion hearings. (NT at 404-05.) 86. Psychiatrist testified that he knows of no typical [same age] boys that have faced 2 expulsion hearings within a 2-month peri od; rather it was “much more likely that [Student] did what he did because of the comb ination of other problems that he has.” (NT at 254.) 87. While I found all witnesses credible, th e Student’s treating psychiatrist was particularly credible not only due to the long-standing relati onship he has with Student, but also his 15 years of practice as a child and adolescent psychiatrist, he is the director of the Div. of Child & Adolescence Psychiatry at Allegheny General Hospital in Pittsburgh, he is the psychiatric consultant for the Ar mstrong-Indiana IU, and provides psychiatric care in the elementary unit for 40-45 severe ly emotionally disturbed children at the Wesley Highland School, which is an approve d private school, he teaches at Allegheny General Hospital for the residency program of the Child & Adoles cent training program, and maintains a caseload of approximately 500 patients with 1/3 to ½ having ADD. (NT at 184-89.) 88. I found the Parent’s school psychologist exceptionally credible as well because he had actual face-to-face tim e with Student as well as havi ng reviewed all of Student’s records; and his academic background is at th e ABD (“all but dissertation”) stage; professional background includes being certified nationally w ith the National Assoc. of School Psychologists as well as having PA St ate certification as a school psychologist; his work experience includes approxima tely 19 years experience as a school psychologist. (NT at 32-26.) Issues 1. Did the School District violate Parent’s procedural rights by failing to obtain parental input into the manifestation determination? 2. Was Student’s behavior a manifestation of his disability? 3. Does the latest IEP appropriately address Student’s behavior, impulsivity and attentional difficulties emanating from ADHD? Discussion and Conclusions of Law Jurisdiction A due process hearing is a hearing authorized through sp ecial education laws of

13 both federal and state legislation. The jurisdiction of such a hearing is highly circumscribed. A hearing officer cannot de cide any issue – no ma tter how significant – which is outside those narrowl y defined perimeters. Thus , any concerns parents may have regarding education se rvices which concern matters beyond those perimeters are beyond the purview of this proces s and this hearing officer. Within the context of the special education arena, however, “[h]ear ing officers are empowered to judge the credibility of witnesses, weigh evidence and, accordingly, render a decision wherein the hearing officer has included ‘findings of fact, discussion and conclusions of law. . . [and] the decision shall be based solely upon th e substantial evidence presented at the hearing.’”5 Quite often, testimony – or documentary evidence – conflicts; this is to be expected for, had the parties been in full accord, there would have been no need for a hearing. Thus, as stated, part of the respons ibility of the hearing officer is to assign weight to the testimony and documentary ev idence of facts which concern a child’s special education experience. Burden of Proof Neither the IDEA nor the IDEIA addre ssed the subject of burden of proof and therefore the question of whic h party bore the burden was ha ndled on a state-by-state basis with only a handful of states passing an y laws or regulations on the matter. In Pennsylvania, the burden of persuasion in an administrative hearing challenging an Individualized Education Program (“IEP”) generally fell to the LEA. Recently, however, the United States Supreme Court addressed this issue in Schaffer v. Weast, 546 U.S. ____ (2005). In the concluding paragraph of the Opinion of the Court, Justice O’Connor held: 5 Spec. Educ. Op. No. 1528 (11/1/04), quoting 22 PA Code, Sec. 14.162(f).

14 “The burden of proof in an administrative h earing challenging an IE P is properly placed upon the party seeking relief.” However, the Pennsylvania Special Education Dispute Resolution Manual states, in pertinent part, in Section 810 – Burd en of Proof – that “[d]espite this general rule, a Hearing Offi cer has discretion to change the order of presentation if he or she believes it is wa rranted. An example of where that may occur would be where a school distri ct seeks to change a student ’s placement, and a parent initiates a due process hearing to challenge th e change of placement. In that instance, a hearing may be more efficiently conduc ted by commencing with the district’s explanation of the rationale for the change.” This case did not warrant such a change of presentation of evidence. Issue One: Did the School District violate Parent’s procedural rights by failing to obtain parental input into the manifestation determination? While the District framed this issue as “w hether the School District is obligated to risk violating state and federal regulations so that the parent and the parent’s attorney can attend the manifestation determination”, 6 the issue is more correctly stated as: “Can the District, in its efforts to conduct the manifestation determ ination before its scheduled disciplinary hearing, proceed to hold the mani festation determination with no regard to Parent’s attendance?” The immediate answer to this question is “No.” The District correctly pointed out th at the IDEIA changed the manifestation determination criteria from the 4-prong analysis to one which limits inquiry to just 2 questions. However, long before those questions can be considered, the question of “who comprises the manifestation determination team?” must be addressed. The District made 6 District’s Closing Statement, at p.5.

15 much of the fact that it was difficult to arrange everyone’s schedules – which this Hearing Officer finds no reason to discount. However, while the District placed great value on District personnel attendance, ab solutely none was given to Parent’s participation in this critical meeting. The District, th rough testimony provided by the Director of Special Education, posited that “[t] he parent is entitled to participate, but the parent is not a required member. If they’re not there, you still have to move on to the team process.”7 This is, quite simply, incorrect. Looking to the previous IDEA via the federal regulations, 34 C.F.R. Section 300.523 (b), we find Congress stated that the manifestation determination team was to be comprised of “the IEP team and other qualified personnel”. The composition of the IE P team is set forth at 34 C.F.R. Section 300.344(a): General. The public agency shall ensure that the IEP team for each child with a disability includes – (1) The parents of the child; (2) At least one regular education teacher of the child… (3) At least one special e ducation teacher of the child… (4) A representative of the public agency… (5) An individual who can interpret the instructional implications of evaluation results… (6) At the discretion of the parent or the agency, other individuals who have knowledge or special expertise regarding the child… and (7) If appropriate, the child. (Emphasis added.) In Special Education Opinion No. 1652, the appeals panel held that while a failure to provide a procedural safeguards notice may be harmless error, “fa ilure to provide the parent with notice of an an opportunity to participat e in the M[manifestation] – D[etermination] . . . . is a more serious matter.” (Emphasis added.) 7 FF # 75, (NT at 518.)

16 Surely it follows that if “the IEP is the ‘Primary Vehicle’ of the IDEA’s implementation,”8 then the IEP team, collectively, is the chauffeur and the vehicle will not run without that individual at the steering wheel. It is important to note that the IDEA listed “Parents” first – not last, not as merely “invited”, but as an integral, necessary part of the team. However, those regulations ar e no longer controlling. Thus, we look to the IDEIA, which has supplanted the IDEA. 20 USC 1415, Sec. 615(k)(E) addresses the composition of the manifestation determination team as: The local educational agency, the parent, and relevant members of the IEP Team (as determined by the parent and the loca l educational agency) shall review all relevant information in the student’s file , including the child’s IEP, any teacher observations, and any relevant information provided by the parents… (Emphasis added.) Thus, instead of Parent’s position be ing weakened under the new law, it is strengthened because “the parent” is now stated as an equal member of the manifestation determination team – on the same footing as the LEA, and separa te and apart from Parent’s being a part of the IEP Team. Nonetheless, Parent cannot conduct a manifestation determination without the pres ence of the LEA and the LEA is equally bound by the same limitations. Additionally, while the District needed to hold the manifestation determination hearing before the 2/6 Board disciplinary hear ing, the District did not show that it could not have rescheduled the Board meeting for la ter that same day or evening and held the manifestation determination sometime earlier in the day when Parent advised that she and her legal counsel were available. Further, addressing the right of Parent to be accompanied by legal counsel to the manifestation determination, Section 615(h) provides: 8 Honig v. Doe, 484 U.S. 305, 311, 108 S.Ct. 592, 597 (1988).

17 Any party to a hearing conducte d pursuant to subsection (f ) or (k), or an appeal conducted pursuant to subsection (g), shall be accorded – “(1) the right to be acco mpanied and advised by counsel and by individuals with special knowledge or training with re spect to the problems of children with disabilities;” Parent did not waive her participation by invoking her right to have legal counsel attend the manifestation determination with her. She clearly stated she planned to attend with her attorney and she took ev ery step possible to advise th e District. It appears there was some confusion in the Director of Sp ecial Education getting one of Parent’s messages; human error happens. However, Pa rent cannot be faulted, nor Student’s rights violated or abrogated because of human error committed by the District’s personnel or by the District’s sincere efforts to conduct the manifestation determination in a timely fashion before the School Board’s expulsion hearing. The manifestation determination was not c onducted as required by law, it violated Student’s rights, and the determination which was the outcome of that meeting is void. Issue No. 2: Was Student’s behavior a manifestation of his disability? Certainly the testimony which Student’s tr eating psychiatrist and Parent’s school psychologist gave is weighty. The psychiatri st has treated Student for several years. The school psychologist, while meeting Student just once, had some 3 hours of one-on- one contact with Student, as compared to the District’s school psychologist who has never even spoken to Student a nd testified that he wouldn’t, in all likelihood, be able to pick Student out in a room. But, while pers onal interaction is valued, it is not the only criterion this Hearing Officer considered. Both psychiatri st and school psychologist have extensive experience with children with Student’s disabilities; both spoke

18 knowledgeably about ADHD and how it affects children generally and how it affects Student, individually. Both professionals weighed their words and gave very well- reasoned statements – neither one was stri dent, but both exhibited extraordinary reasonableness.9 The District – through testimony of th e Director of Special Education and Student’s teachers - attempted to explain why the IEP Team Conference Reports did not mean what the teachers who filled out the form s said they meant. The directions on the form are clear: “Based on your observations , please evaluate the student in comparison to other classmates by checking problems fre quently observed.” As an example, one teacher even marked her form with varying numbers of “x”s – up to 3 per problem observed – and made a handwritten comment st ating Student “struggles to keep up with the pace of the class.” Yet, while testifying, she attempted to mitigate the information on the form by saying he’s not any different th an any of her other students; however, she contradicted that by going on and saying that he has troubl e following directions or completing an activity without asking a question. 10 The truly puzzling question, however, is Why is the District so reluctant to address Student’s increasing ADH D needs? While the Distri ct could argue with some success that before the 12/14/05 incident, it had no notice that Student’s ADHD was again impacting his educational experience as it had when Student was initially identified as a first grader, after Student returned to school and recommitted the same type of behavior in the same type of classroom e nvironment (one where there is less structure [redacted]) within a matter of days, it should have reconvened the IEP team and 9 See, for example, FF ## 9, 10, 12-15, 29-31, 35, 36, 38, 40, 41. 10 FF # 43-45.

19 addressed his behavior issue(s). While Student is performing well in stru ctured, academic classe s, that cannot be the sole criterion for finding that his be havior did not emanate from his well- acknowledged and long-documented ADHD. Fo r the District to focus on Student’s academic grades and say that since his misbehaviors manifest themselves – for the moment – only in the less formal classes and since it does not impact his academic grades at this juncture that it has no bearing on his educational experience is missing the point. If these behaviors – wherever they occur – end up being the basis for expulsion, how can Student be said to not have his academic career adversely impacted by a long-standing, identified disability when the doors to education are barred to him? The evidence is not only preponderant but clear and convincing that Student, in addition to having a specific learning disability and speech and language needs, also has impulsivity issues which stem from his ADHD. These needs must be addresse d in order for this ch ild to have a free, appropriate public education. Therefore, th e IEP team must reconvene within 10 school days, conduct a functional behavioral assessment and implement a behavioral intervention plan. As a matter of dicta, I am also concer ned that Student has been charged with Terroristic Threats. One the one hand, the District appears to believe that Student was joking, yet they charge him with a crime which has as a requisite elem ent of the crime: Intent. And, more specifically: Intent to terrorize. 18 PA C.S.A. Sec. 2706 states: A person commits the crime of terroristi c threats if the person communicates, either directly or indirectly, a threat to: (1) Commit any crime of violence with intent to terrorize another; (2) Cause evacuation of a building, place of assembly or facility of public

20 transportation, or (3) Otherwise cause seri ous public inconvenience, or cause terror or serious public inconvenience with reckless disregard of the risk of causing such terror or inconvenience. The term “communicates” means, conveys in person or by written or electronic means, including telephone, electronic mail, internet, facsimile, telex and similar transmissions. No adult heard these statements made by Student. Therefore, it seems that it is left to the pupils who heard Student to be called upon to ma ke this legal determination: Was it said with intent? The testimony showed that pupil wasn’t sure if Student was serious or not. 11 While I appreciate the rigorous demands placed on District personnel in assuring our students have a safe environment for their e ducation, one must wonde r if there is room for exercise of personal judgment at a school level, rather than at a Board expulsion meeting. Issue No. 3: Does the latest IEP appropriately address Student’s behavior, impulsivity and attentional difficulties emanating from ADHD? No. Student’s treating psychiatrist and Parent’s school psychologist both testified credibly to the need for a behavior manage ment plan to specifically address Student’s ADHD needs. Additionally, the IEP team must address, in light of Parent’s additional evidence presented by Student’s psychiatri st and school psychologist, the extent Student’s ADHD impacts his total educational experience and, in light of the past two incidents, craft an IEP which meets Student’s current needs. 11 FF # 73.

21 Order For the reasons hereinabove discus sed, It is hereby ordered that: 1. The Manifestation Determina tion dated 2/1/06 is void; 2. The IEP team must reconvene with in 10 school days, conduct a functional behavioral assessment and implement a behavioral intervention plan; and, 3. The IEP team must address, in light of Parent’s additional evidence presented by Student’s psychiatrist and school psychologi st, the extent Student’s ADHD impacts his total educational experience and craft an a ppropriate IEP which meets all of Student’s needs. Margaret Drayden Margaret Drayden, Esq. H e a r i n g O f f i c e r Dated: March 12, 2006.