COMMONWEALTH OF MASSACHUSETTS
SPECIAL EDUCATION APPEALS
In Re: Agawam Public Schools
BSEA # 10-2848
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 ch. 71B), the state Administrative Procedure Act (MGL ch. 30A), and the regulations promulgated under these statutes.
On November 2, 2009, Agawam Public Schools (Agawam) filed a Request for Hearing in the above-referenced matter. On November 16, 2009, Agawam requested that the matter be decided on submission of documents only pursuant to Rule XII of the Hearing Rules for Special Education Appeals .1 This request is granted and a decision on documents only is being issued by Hearing Officer Rosa I. Figueroa.2
In rendering this decision I rely on documents submitted by Agawam on November 16, 2009, and marked as exhibits SE-1 through SE-3. The record closed on November 23, 2009.
HEARING ISSUE
Whether Agawam is responsible to fund the Independent Evaluation sought by Parent?
POSITION OF THE PARTIES
Agawam’s Position:
Agawam denies that it is responsible to fund a full independent evaluation as sought by Parents because Parents have not first requested that Agawam conduct an evaluation of Student which it asserts, is a pre-requisite to Parents’ entitlement to a publicly funded independent evaluation.
Parents’ Position:
Parents did not submit a response or state their position regarding this issue.
FINDINGS OF FACT
1. Student is a resident of Agawam, Massachusetts attending second grade at the Robinson Park Elementary School (SE-1). Student’s eligibility and entitlement to special education have not been established (SE-2).
2. On October 27, 2009, Mother wrote to Mr. John Provost, Agawam’s Director of Special Education, seeking that Agawam fund an independent evaluation of Student (SE-2). As reasons for her request, Mother alleged that Student had been tested the previous year to ascertain whether she required special education services3 ; that Student’s teacher had stated to Mother that Student had tested lowest in her class and that in the teacher’s opinion, Student required services; that Student’s writing samples showed reversals of letters; and Student’s reading was delayed. Mother suspected that Student may have dyslexia and it was her understanding that Agawam did not evaluate students for dyslexia (SE-1). As such, Mother sought a complete independent evaluation from an outside source at school district’s expense. Mother requested that Agawam immediately forward the district’s criteria to select evaluators (SE-1).
3. Mr. Provost responded to Parents’ request via letter of October 29, 2009, stating that Student had never been evaluated for special education services and explaining that a parent’s right to an independent educational evaluation was contingent upon parental disagreement with an evaluation previously conducted by the school district (SE-2). Mr. Provost further notified Parents that they had the right to refer Student for a special education evaluation to be conducted by Agawam and further informed them that they could contact him or Mrs. Palazzi to make the referral. He further stated that an eligibility determination would follow the evaluation. As such, Mr. Provost denied Parents’ request. The Parent’s Notice of Procedural Safeguards was enclosed with Mr. Provost’s October 29, 2009, letter to Parents (SE-2).
4. Agawam then requested a Hearing with the Bureau of Special Education Appeals (BSEA) on November 2, 2009, seeking a determination that it was not responsible to fund Student’s independent evaluation (SE-3). Agawam further sought a ruling that Parents were required to follow Agawam’s protocol for referring Student for a special education evaluation and subsequent determination of eligibility (SE-3).
CONCLUSIONS OF LAW
Student has not been found to be an individual with a disability falling within the purview of the Individuals with Disabilities Education Act4 (IDEA) and the state special education statute.5 Parents however, have requested that Agawam fund a full independent evaluation of Student. Agawam has denied Parents’ request, asserting that it is not responsible to fund the evaluation sought by Parents and requesting that Parents be instructed to follow proper referral procedures.
Upon consideration of the documents submitted by Agawam, I conclude that Agawam has met its burden of persuasion pursuant to Schaffer v . Weast , 126 S.Ct. 528 (2005)6 . My reasoning follows:
The IDEA7 regulations confer upon parents of disabled students the right to proceed with independent evaluations at public expense. 34 CFR 300.502. The regulations define independent evaluation as an
Evaluation conducted by a qualified examiner who is not employed by the public agency responsible for the education of the child in question. 34 CFR 300.502(a)(3)(i).
For purposes of this section, the term public agency is equivalent to local educational agency, that is, the particular school district responsible for the student in question, in this case Agawam. Furthermore, federal special education regulation provide that the right to an independent evaluation arises
If the parent disagrees with an evaluation obtained by the public agency, subject to the conditions in paragraphs (b)(2) through (4) of this section. 34 CFR 300.502(b)(1).
Consistent with federal law and regulations, the Massachusetts special education regulations provide parents a right to independent evaluations as stated in 603 CMR 28.04(5)(a) which provides:
5. Independent education evaluations. Upon receipt of evaluation results, if a parent disagrees with an initial evaluation or reevaluation completed by the school district, then the parent may request an independent education evaluation.
Both the federal and Massachusetts regulations establish a clear requirement that the right to an independent educational evaluation arises after the school district has first conducted an evaluation in the area disputed by the parent (emphasis supplied).
In the instant case, there is no evidence that Parents, or any other individual, has referred Student for an in-district special education evaluation, and Student has not been deemed eligible to receive special education services. As such, Parents have not met the federal or state requirements that give right to a publicly funded independent evaluation. It is for this reason that Agawam denied Parents’ request for an independent evaluation and filed a request for hearing consistent with 603 CMR 28.04(5)(d)8 , challenging Parents’ right to an independent evaluation and district responsibility.
Clearly, Agawam has met its burden of persuasion in showing that it is not responsible to fund an independent evaluation of Student at this time.
Lastly, Agawam seeks further ruling requiring Parents to follow “District protocol for referring their child for a special education evaluation and eligibility determination.” In this regard, the BSEA may offer Parents guidance regarding how to proceed with a referral for evaluation. A parent or any caregiver or professional concerned with the child’s development may refer Student for an evaluation. 603 CMR 28.04(1). The trigger for initiation of the evaluation is “receipt of parental consent” pursuant to 603 CMR 28.07(1)(a). Thereafter, Agawam has forty-five school working days to conduct the evaluation9 and convene the Team meeting to review the results of the evaluation to ascertain whether Student is eligible to receive special education services. See 603 CMR 28.04(2) and 603 CMR 28.05(1). Given Parents’ concerns over Student’s possible issues with dyslexia, they are encouraged to initiate the referral and sign the consent for initial evaluation of Student forthwith.
ORDER
Agawam is not responsible to fund an independent evaluation of Student at this time.
So Ordered by the Hearing Officer,
___________________________
Rosa I. Figueroa
Dated: November 24, 2009
1
“ Rule XII: Decision Without a Hearing
A party may request a decision without a hearing
All parties must agree to a decision based solely on written material. The decision will have the same force and effect as any other BSEA decision.”
2
On November 18, 2009, Mr. Paul O’Brien, BSEA Program Coordinator, left a voice mail message for Parents to inform them of Agawam’s request to have the matter decided on submission of documents only, and to ascertain whether Parents intended to submit a response by November 23, 2009. No response or documents were received from Parents by the date the record closed.
3
The record lacks evidence that Student was actually evaluated by Agawam the previous year to determine eligibility for special education services. Rather, it seems that it was a sibling of Student who was evaluated (SE-2).
4
20 USC 1400 et seq .
5
MGL c. 71B.
6
Schaffer v . Weast , 126 S.Ct. 528 (2005) places the burden of proof in an administrative hearing on the party seeking relief.
7
20 USC 1415(d)(2)(A).
8
“… The district shall either agree to pay for the independent education evaluation or within five school days, proceed to the Bureau of Special Education Appeals to show that its evaluation was comprehensive and appropriate…” 603 CMR 28.04(5)(d).
9
The evaluation itself must be completed within thirty (30) school days . 603 CMR 28.04(2).