COMMONWEALTH OF MASSACHUSETTS
BUREAU OF SPECIAL EDUCATION APPEALS
In Re: Agawam Public Schools
BSEA # 07-1579
DECISION
This decision is issued pursuant to the Individuals with Disabilities Education Act (20 USC 1400 et seq .), Section 504 of the Rehabilitation Act of 1973 (29 USC 794), the state special education law (MGL c. 71B), the state Administrative Procedure Act (MGL c. 30A), and the regulations promulgated under these statutes.
A hearing was held on November 20, 2006 in Worcester, MA before William Crane, Hearing Officer. Those present for all or part of the proceedings were:
Barbara Connery Education Team Facilitator, Agawam Public Schools
John Provost Director of Special Services, Agawam Public Schools
Peter Smith Attorney for Agawam Public Schools
Parent was notified but did not attend the Hearing.
The official record of the hearing consists of documents submitted by the Agawam Public Schools (Agawam) and marked as exhibits S-1 through S-15; and approximately two hours of recorded oral testimony and argument. Written arguments were due on December 1, 2006, and the record closed on that date.
Introduction
In this dispute, Agawam seeks approval of its most-recently proposed IEP and permission to conduct a three-year evaluation without parental consent. For reasons explained below, I find in favor of Agawam on both matters.
On May 25, 2006, Agawam held an Individualized Education Program (IEP) Team meeting for the purpose of developing a new IEP for Student. Parent had not responded to the notice for the Team meeting, and she did not attend the Team meeting. As a result of the meeting, a proposed IEP was developed and sent to Parent. Parent did not respond either to accept or to reject part or all of the proposed IEP. Similarly, Parent has not responded to Agawam’s request for consent to re-evaluate Student.
On September 1, 2006, Agawam filed with the Bureau of Special Education Appeals (BSEA) a Hearing Request , seeking an Order that its most recent IEP is reasonably calculated to provide Student with a free appropriate public education (FAPE), and an Order allowing it to conduct a three-year evaluation of Student.
After receipt of the Hearing Request , the BSEA attempted, unsuccessfully, to schedule several conference calls with Parent. As a result, a Hearing date was scheduled without consultation with Parent. Parent was then advised by mail and telephone voice message of the time, date, and location of the Hearing. Parent did not request a postponement of the Hearing.
Parent did not attend or otherwise participate in the evidentiary Hearing, which occurred on November 20, 2006. Following the Hearing, the BSEA sent Parent a copy of an audio tape of the Hearing and provided notice to her that she may respond, no later than December 1, 2006, with written argument or a request to supplement the evidentiary record or both. Parent did not respond.1
Issues
The issues to be decided in this case are the following:
1. Is the IEP most recently proposed by the Agawam Public Schools (exhibit S-10) reasonably calculated to provide Student with a free appropriate public education in the least restrictive environment?
2. If not, can additions or other modifications be made to the IEP in order to satisfy this standard?
3. May Agawam proceed with its proposed three-year evaluation without Parent’s consent?
Agawam has the burden of persuasion regarding these issues.2
Profile of Student
Student is fourteen-years old and lives with her mother (Parent) in Agawam, Massachusetts. Student attends an 8 th grade inclusion program (with pull-out services) at the Agawam Junior High School. Next year, she is expected to attend high school. Testimony of Connery; exhibit S-10.
Student is friendly and cooperative. She is well-liked by peers and teachers. Student has executive functioning deficits, which compromise her ability to organize and efficiently process visual-spatial and visual-perceptual information. She has learning strengths when processing visual information presented to her sequentially, but she has comprehension difficulties when verbal information is presented quickly. Student has been diagnosed as having “at least some degree” of Attention Deficit Disorder. Her overall intellectual and cognitive abilities are considered to be in the low average range. Student has had academic difficulties with reading, written expression, and math. Testimony of Connery; exhibits S-5, S-6, S-10.
Appropriateness of Most-Recently Proposed IEP
Student is an individual with a disability, falling within the purview of the Individuals with Disabilities Education Act (IDEA)3 and the state special education statute,4 which ensure that all children with disabilities have available to them a free appropriate public education (FAPE).5 Neither Student’s eligibility status nor her entitlement to FAPE is in dispute.
FAPE is provided through an “individualized educational program” (IEP). According to the United States First Circuit, the relevant inquiry is whether the IEP is “reasonably calculated to provide ‘effective results’ and ‘demonstrable improvement’ in the various ‘educational and personal skills identified as special needs.’”6 In addition, the United States Supreme Court has identified, as a substantive educational standard, the expectation that special education services make a student’s access to her education “ meaningful”7 and has adopted an approach that requires consideration of the educational potential of the particular student.8
Student began receiving special education services in 1 st grade. By 3 rd grade, she had been placed in a language-based classroom, with the addition of counseling and speech-language pull-out services. During the fall of 3 rd grade (October 2002), Agawam conducted a three-year evaluation, which included a psychological evaluation, education evaluation, and speech-language evaluation. These are the last evaluations conducted by Agawam. During 5 th grade, Parent requested public funding of independent evaluations (neuropsychological and speech-language) to which Agawam agreed, and in June 2004 the IEP Team met to consider these evaluations. These are the last evaluations conducted at Parent’s request. Eventually, Student transitioned to an inclusion model taught by regular education and special education staff, with pull-out services. This is Student’s current service delivery model. Testimony of Provost, Connery; exhibits S-2, S-3, S-4, S-5, S-6.
During this current school year (8 th grade), Student has attended the inclusion educational program reflected within Agawam’s most recently-proposed IEP. Pursuant to the IEP, English language arts, math and social studies are taught in an inclusion model by a team of a regular education teacher and a special education teacher, each for .76 [sic] hours per day. Near the end of most school days (at least 3 out of 5 days), Student receives inclusion learning time – a pull-out, special education service intended to review and reinforce what has been taught during the inclusion classes. The IEP also calls for pull-out speech-language services for .76 [sic] hours, twice each week, and pull-out social emotional services (a group led by the school adjustment counselor) for .33 hours, once per week. The IEP is for the period 5/25/06 to 5/24/07. A significant number of accommodations (see page 4 of 11 of IEP, exhibit S-10) are embedded within the instruction provided to all students. The class size is 22 students, approximately 10 of whom have special education needs. Testimony of Connery; exhibit S-10.
Since 1 st grade, Student has generally made educational progress in some areas and had difficulty in others – in particular, she has had difficulty with reading, written language, and math. During 7 th grade (2005-2006 school year), Student showed greater progress than in the past, particularly in her major subjects. This is reflected in her year-end grades and written progress reports. The only significant area of difficulty during 7 th grade was remedial reading – her grades varied during the year from a high of 82 to a low of 46, with a final grade of 64. These relatively low and uneven grades reflected inconsistent completion of projects (which were to be done, in part, after the regular school day) and other homework assignments. Testimony of Connery; exhibits S-12, S-13.
During the current school year (8 th grade), Student’s grades and written progress reports reflect continuing progress, with the exception of Heterogeneous Social Studies (1 st term grade of D) and Family Consumer Science (1 st term grade of F). These lower grades indicate a failure to complete, on a consistent basis, projects that must be done, in part, after the regular school day. Student’s teachers have encouraged Student to stay after school to receive assistance with these and other school assignments, but Student has generally not taken advantage of these opportunities for assistance, instead telling her teachers that she must go home. I find that Student’s current difficulty with these two courses do not reflect an inadequate IEP. Testimony of Connery; exhibit S-15.
This unrebutted evidence indicates that Student has made (and is likely to continue to make) effective, meaningful progress consistent with her educational potential, pursuant to Agawam’s most recently-proposed IEP (exhibit S-10). I conclude that the IEP is reasonably calculated to provide Student with a free appropriate public education in the least restrictive environment.9
Three-Year Evaluation
Massachusetts special education regulations provide, in relevant part, as follows:
Annual reviews and three-year reevaluations . The school district shall review the IEPs and the progress of each eligible student at least annually. Additionally, every three years, or sooner if necessary, the school district shall, with parental consent, conduct a full three-year reevaluation consistent with the requirements of federal law.10
Federal special education regulations further provide, in relevant part, as follows:
Parental consent for reevaluations . (1) Subject to paragraph (c)(2) of this section, each public agency–
(i) Must obtain informed parental consent, in accordance with §300.300(a)(1), prior to conducting any reevaluation of a child with a disability.
(ii) If the parent refuses to consent to the reevaluation, the public agency may, but is not required to, pursue the reevaluation by using the consent override procedures described in paragraph (a)(3) of this section [referring to the due process procedures].11
Courts have made clear that, as a general rule, parents may not preclude a school district from re-evaluating their son or daughter if the parents desire continuation of special education services.12 In the instant dispute, Parent has given no indication that she desires special education services to be terminated.
As noted above, Student was last evaluated by Agawam in 2002, with independent neuropsychological and speech-language testing done in 2004. As a result, Agawam does not have current, objective indicators of Student’s special education needs and abilities, and a new, three-year evaluation is overdue. Parent has neither agreed to nor refused permission for Agawam’s proposed three-year evaluation of Student.
There is ample, undisputed evidence to support Agawam’s claim that it needs updated, objective information from evaluations not only to determine whether services should be adjusted during the current school year but also for purposes of planning for the next school year. Testimony of Provost.
During the 2007-2008 school year, Student is expected to attend high school where there will be increased educational demands. Agawam is appropriately concerned, for example, that some of Student’s current areas of weakness (for example, inconsistency in completing assignments and school absences) may result in failure at the high school level. Also, for high school, Agawam has a variety of placement choices that it might offer Student, including a language-based classroom and various vocational programs. Student has indicated possible interest in a career as a medical technician or chef. Information obtained from updated evaluations regarding Student’s special education needs and her academic achievement levels would inform all of these educational decisions. Testimony of Provost.
An updated three-year evaluation is necessary for Agawam to determine what educational services and placement are appropriate for Student. Agawam should conduct the evaluation of Student notwithstanding the lack of consent from Parent. The evaluation should include a psychological assessment, academic achievement testing, speech-language assessment, and educational status assessment.
Order
Agawam’s most recently-proposed IEP (exhibit S-10) is reasonably calculated to provide Student with a free appropriate public education in the least restrictive environment.
Agawam shall conduct a three-year evaluation, to include a psychological assessment, academic achievement testing, speech-language assessment, and educational status assessment.
By the Hearing Officer,
William Crane
Dated: December 11, 2006
COMMONWEALTH OF MASSACHUSETTS
BUREAU OF SPECIAL EDUCATION APPEALS
THE BUREAU’S DECISION, INCLUDING RIGHTS OF APPEAL
Effect of the Decision
20 U.S.C. s. 1415(i)(1)(B) requires that a decision of the Bureau of Special Education Appeals be final and subject to no further agency review. Accordingly, the Bureau cannot permit motions to reconsider or to re-open a Bureau decision once it is issued. Bureau decisions are final decisions subject only to judicial review.
Except as set forth below, the final decision of the Bureau must be implemented immediately. Pursuant to M.G.L. c. 30A, s. 14(3), appeal of the decision does not operate as a stay. Rather, a party seeking to stay the decision of the Bureau must obtain such stay from the court having jurisdiction over the party’s appeal.
Under the provisions of 20 U.S.C. s. 1415(j), “unless the State or local education agency and the parents otherwise agree, the child shall remain in the then-current educational placement,” during the pendency of any judicial appeal of the Bureau decision, unless the child is seeking initial admission to a public school, in which case “with the consent of the parents, the child shall be placed in the public school program”. Therefore, where the Bureau has ordered the public school to place the child in a new placement, and the parents or guardian agree with that order, the public school shall immediately implement the placement ordered by the Bureau. School Committee of Burlington, v. Massachusetts Department of Education , 471 U.S. 359 (1985). Otherwise, a party seeking to change the child’s placement during the pendency of judicial proceedings must seek a preliminary injunction ordering such a change in placement from the court having jurisdiction over the appeal. Honig v. Doe , 484 U.S. 305 (1988); Doe v. Brookline , 722 F.2d 910 (1st Cir. 1983).
Compliance
A party contending that a Bureau of Special Education Appeals decision is not being implemented may file a motion with the Bureau of Special Education Appeals contending that the decision is not being implemented and setting out the areas of non-compliance. The Hearing Officer may convene a hearing at which the scope of the inquiry shall be limited to the facts on the issue of compliance, facts of such a nature as to excuse performance, and facts bearing on a remedy. Upon a finding of non-compliance, the Hearing Officer may fashion appropriate relief, including referral of the matter to the Legal Office of the Department of Education or other office for appropriate enforcement action. 603 CMR 28.08(6)(b).
Rights of Appeal
Any party aggrieved by a decision of the Bureau of Special Education Appeals may file a complaint in the state superior court of competent jurisdiction or in the District Court of the United States for Massachusetts, for review of the Bureau decision. 20 U.S.C. s. 1415(i)(2).
An appeal of a Bureau decision to state superior court or to federal district court must be filed within ninety (90) days from the date of the decision. 20 U.S.C. s. 1415(i)(2)(B).
Confidentiality
In order to preserve the confidentiality of the student involved in these proceedings, when an appeal is taken to superior court or to federal district court, the parties are strongly urged to file the complaint without identifying the true name of the parents or the child, and to move that all exhibits, including the transcript of the hearing before the Bureau of Special Education Appeals, be impounded by the court. See Webster Grove School District v. Pulitzer Publishing Company , 898 F.2d 1371 (8th Cir. 1990). If the appealing party does not seek to impound the documents, the Bureau of Special Education Appeals, through the Attorney General’s Office, may move to impound the documents.
Record of the Hearing
The Bureau of Special Education Appeals will provide an electronic verbatim record of the hearing to any party, free of charge, upon receipt of a written request. Pursuant to federal law, upon receipt of a written request from any party, the Bureau of Special Education Appeals will arrange for and provide a certified written transcription of the entire proceedings by a certified court reporter, free of charge.
1
BSEA Hearing Rule XF provides that if a party fails to appear at the scheduled hearing, the Hearing Officer may take testimony and issue such orders as necessary, including ordering an educational program or placement.
2
Schaffer v. Weast , 126 S. Ct. 528, 537 (2005) (burden of persuasion in an administrative hearing is placed upon the party seeking relief; a party who has the burden of persuasion “ loses if the evidence is closely balanced” ).
3
20 USC 1400 et seq .
4
MGL c. 71B.
5
20 USC 1400(d)(1)(A). See also 20 USC 1412(a)(1)(A); MGL c. 71B, ss. 2, 3.
6
Lenn v. Portland School Committee , 998 F.2d 1083, 1090 (1 st Cir. 1993). See also, e.g., 20 USC 1400(d)(4) (purpose of the federal law is “ to assess, and ensure the effectiveness of, efforts to educate children with disabilities”) ; Manchester-Essex Reg’l Sch’l Dist. Sch’l Comm. v. Bureau of Special Education Appeals of the Mass. Dept. of Education , CA No. 05-10922-NMG (D.Mass. September 27, 2006) (Gorton, J.) (utilizing the First Circuit standard quoted in the text above); 603 CMR 28.05(4)(b) (IEP must be “designed to enable the student to progress effectively in the content areas of the general curriculum”); 603 CMR 28.02(18) (defining Progress effectively in the general education program ).
7
Bd. of Educ. of the Hendrick Hudson Central Sch. Dist. v. Rowley , 458 U.S. 176, 192 (1982). Several federal circuit courts have similarly concluded that the IEP must provide a student with meaningful access to education or that the IEP must be reasonably calculated to enable the child to receive meaningful educational benefits. E.g ., Frank G. v. Board of Educ. of Hyde Park, — F.3d —-, 2006 WL 2077009 (2 nd Cir. 2006).
8
Rowley , 458 U.S. at 202 (“benefits obtainable by children at one end of the [disability] spectrum will differ dramatically from those obtainable by children at the other end”).
9
As Ms. Connery pointed out in her testimony, there is a typographical error in the IEP that should be corrected – that is, the inclusion services, which are listed on part C of the service delivery grid of the IEP, should be listed, instead, under part B of the grid.
10
603 CMR 28.04(3).
11
34 CFR 300.300(c).
12
E.g., M.T.V. v. Dekalb County School District , 446 F.3d 1153, 1160 (11 th Cir. 2006) (“Every court to consider the IDEA’s reevaluation requirements has concluded ‘[i]f a student’s parents want him to receive special education under IDEA, they must allow the school itself to reevaluate the student and they cannot force the school to rely solely on an independent evaluation.’”) (collecting cases).