COMMONWEALTH OF MASSACHUSETTS
SPECIAL EDUCATION APPEALS
Agawam Public Schools v. Student
BSEA #07-1507
DECISION
This decision is issued pursuant to M.G.L. c. 71B and 30A, 20 U.S.C. § 1401 et seq., 29 U.S.C. § 794, and the regulations promulgated under said statutes.
A hearing was held on November 29, 2006 at the office of Catuogno Court Reporting, 1414 Main Street, Springfield, Massachusetts and 446 Main Street, Worcester, Massachusetts, before Catherine M. Putney-Yaceshyn, Hearing Officer.
PROCEDURAL HISTORY
Agawam Public Schools, (hereinafter, “Agawam”) requested a hearing on September 1, 2006 and the hearing was scheduled to occur on October 6, 2006. On October 4, 2006, Agawam requested a postponement which was allowed. The hearing was rescheduled to occur on November 29, 2006. The hearing was held on November 29, 2006 at the office of Catuogno Court Reporting, Springfield, Massachusetts. Parent did not attend the hearing although she had been notified of the date and time. On November 30, 2006, the hearing officer sent a copy of the hearing tape to Parent and Agawam along with an Order indicating that the parties would have until December 8, 2006 to submit any written closing argument. Neither party submitted a closing argument and the record closed on December 8, 2006.
Those present for all or part of the Hearing 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
Catherine M. Putney-Yaceshyn Hearing Officer
Parent was notified but did not attend the Hearing.
The official record of this hearing consists of Agawam Public Schools’ exhibits marked S-1 through S-17 and approximately 2 hours of recorded oral testimony.
ISSUES
1. Whether the BSEA should overrule the Parent’s lack of consent to Student’s three-year evaluation.
SUMMARY OF THE EVIDENCE
1. The student (hereinafter, “Student”) is a fifteen-year-old ninth grade student residing in Agawam, Massachusetts, within the Agawam Public Schools. He has received special education services since he was in the first grade. His fourth grade teacher reported that he had difficulty processing information and he needed directions to be explained several times. His reading skills were below grade level and he had difficulty understanding vocabulary terms and language concepts. His fifth grade teachers noted the same difficulties. Student was reevaluated prior to beginning middle school. Psychological assessment found low average cognitive abilities and educational assessment revealed weaknesses in reading comprehension, written expression and oral expression. Speech and language assessment revealed a communication impairment in his spoken language skills including the areas of listening, speaking, semantics, and syntax. (S-17)
2. Barbara Connery is the Educational Team Facilitator for grades seven through nine in the Agawam Public Schools. She has been familiar with Student since he was in the fifth grade. Ms. Connery testified that Student’s mother accepted all of his IEPs (since his first was written in March 1999) until the most recently proposed IEP. (Connery)
3. Student’s last three-year evaluation took place in March 2002. At that time Agawam conducted a psychological assessment (S-2) and a speech language evaluation (S-3), and a special services educational assessment report was written (S-4). (Connery)
4. Agawam sent Parent a Notice of Proposed School District Action dated January 3, 2005, requesting the parent’s consent to conduct Student’s three-year re-evaluation along with an Evaluation Consent Form. Agawam received no response from Mother. (S-9, Connery)
5. On or about September 27, 2005, Agawam sent Mother via certified and regular mail a Team meeting invitation with a meeting date of October 18, 2005. (S-9) Mother did not attend the Team meeting and Agawam received a return receipt with Mother’s signature dated October 21, 2005. (S-10)
6. On or about October 20, 2005, Agawam sent a second Notice of Proposed School District Action seeking Mother’s consent to perform Student’s three-year evaluation. (S-12) On or about January 1, 2006, Agawam sent a third Notice of Proposed School District Action seeking Mother’s consent to evaluate Student. (S-13) Mother did not respond to any of the three notices. Ms. Connery had sent each notice by certified and regular mail. The certified third notice was returned to Agawam unclaimed, but the regularly mailed notices were not returned to Agawam. (S-13, S-15, Connery)
7. During the May 25, 2006 Team meeting, the speech language therapist reported that Student works extremely hard and he no longer required pull-out speech language therapy. She noted that despite the improvement in his ability to ask for help from his teachers he continued to have needs in the area of written language and she recommended that he attend the inclusion study skills class. His English teachers reported that he had made great progress during the past two years, took pride in his work, and worked hard on every assignment. They reported that Student showed “maturity by listening, considering the advice, and then making his own decision.” They deemed his written expression to still be “a little weak” and therefore, recommended his placement in an inclusion English class at the high school. Student reported that he hoped to attend college to study engineering and he did not believe that he needed the inclusion study skills class offered at the high school. Student’s mother did not attend the Team meeting. (S-16, S-17, Connery)
8. The Team proposed an IEP for the period from May 25, 2006 through May 24, 2007. The only special education service proposed was inclusion English. Mother rejected the IEP in full on August 23, 2006. She wrote, “I am requesting to take [Student] out of your program: Not going to agree about anything.” In the space provided for Parent Comment, Mother wrote, “Taking [Student] out of your program and services.” (S-17)
9. Ms. Connery testified that on June 20, 2006, Mother had met with Assistant Principal, Mr. Lemanski, who is in charge of student scheduling. Mother asked Mr. Lemanski to place Student in honors level English and history classes. Mr. Lemanski told her that was not the Team recommendation. Mother left a message for Ms. Connery to call her and Ms. Connery returned her call and left her a message. On August 23, 2006, while she was out of her office, Mother came to see her. When she returned she received a message indicating that Mother wanted “to remove [Student] from services.” (Connery, S-17)
10. Student’s final report card for the eighth grade included the following grades: Inclusion English: 86; Science: 81; Social Studies: 82, Pre-Algebra: 86; French: 89; and Remedial Reading: 90. (S-16)
11. Student is currently attending Agawam High School and is not receiving special education services. His most recent grades include a B+ in honors English and an A- in honors World History. His lowest grade was a seventy-six in Algebra I and he has earned A’s and B’s in all of his other classes. His teachers made consistent satisfactory comments about him and were pleased with his abilities as a student. Student had been absent from school from November 13, 2006 until the day of the hearing, November 29, 2006. Prior to those absences, Student only had one absence this year. (Connery)
12. As he reported at the May 25, 2006 Team meeting, Student did not feel that he required a study skills class, and during his time at Agawam High School he has done well without the additional support. Agawam wishes to evaluate him prior to making a determination as to whether he continues to require special education services. (Connery)
13. John Provost testified that he is Agawam’s Director of Special Services and as such he is responsible to ensure that all eligible students receive FAPE. He directed that Agawam file a hearing request when he became aware that Mother was not communicating with Agawam and it became clear that she did not want to participate in the special education process. He explained that Agawam wished to evaluate Student in order to make a current eligibility determination. He said that if Student were not deemed eligible for special education the Team would determine whether Student qualified for a 504 accommodation plan or a building accommodation plan. (Provost)
FINDINGS AND CONCLUSIONS:
Student is an individual with a disability, falling within the purview of the Individuals with Disabilities Education Act (IDEA)1 and the state special education statute.2 As such, she is entitled to a free appropriate public education (FAPE).
The sole issue before me is whether it is appropriate to override the Parent’s lack of consent and allow Agawam to conduct its three-year reevaluation of Student. Student currently remains eligible for special education services despite Mother’s rejection of the last proposed IEP and her notation on the IEP indicating her desire for Student to stop receiving special education services because a full reevaluation is required in order for a school district to terminate eligibility. 34 CFR 300.305(e). Mr. Provost testified that Agawam sought a BSEA override of parent’s lack of consent to determine whether Student remains eligible for special education or requires any regular education support services.
Federal regulation provides that “A public agency must ensure that a reevaluation of each child with a disability is conducted in accordance with §§300.304 through 300.311—
(1) if the public agency determines that the educational or related services needs, including improved academic achievement and functional performance, of the child warrant a reevaluation; or (2) if the child’s parent or teacher requests a reevaluation. See 34 CFR 300.303. In the instant case, Student’s academic achievement has improved. If he were receiving special education services, such improved performance may warrant reevaluation to determine whether his services should be adjusted. However, since Student’s academic performance has improved without the benefit of special education services, there does not seem to be any justification for overriding the lack of parental consent on this basis.
The Massachusetts regulation pertaining to parental consent for a reevaluation states that, “Written parental consent shall be obtained before conducting a reevaluation and before placing a student in a special education placement subsequent to the initial placement in special education.” 603 C.M.R. 28.07(1)(a). The regulations require that the school district make and document efforts to contact the parent when their consent is required and the parent fails or refuses to participate in the process. 603 CMR 28.07 (1)(c). In the instant case, Agawam demonstrated that it sent Mother notices of meetings and requests for consent using both certified and regular mail. Only after providing Mother with multiple notices and opportunities to participate in the determination of whether Student required a reevaluation did Agawam proceed to the Bureau of Special Education Appeals to obtain consent for the evaluation.
Additionally, the regulations provide
If subsequent to initial evaluation and initial placement and after following the procedures required by 603 CMR 28.00, the school district is unable to obtain parental consent to a reevaluation …the school district shall consider with the parent whether such action will result in the denial of a free appropriate public education to the student. If after consideration, the school district determines that the parent’s failure or refusal to consent will result in a denial of a free appropriate public education to the student, it shall seek resolution of the dispute through the procedures provided in 603 CMR 28.08. Participation by the parent in such consideration shall be voluntary and the failure or refusal of the parent to participate shall not preclude the school district from taking appropriate action pursuant to 603 CMR 28.08 to resolve the dispute. 603 CMR 28.07(1)(b)
In the case at hand, there has been no allegation that Student is being denied a free appropriate public education. In fact, the evidence shows that Student is performing very well academically in all of his classes, including two Honors level classes, without the benefit of any special education services. Mr. Provost indicated that Agawam wished to evaluate Student prior to exiting him from special education. However, Agawam did not make the decision to remove Student from special education, Mother did. In order to override a parent’s right to consent to a reevaluation a school district must show that the Student is being denied a free appropriate public education. Agawam has not made such a showing.
A recent California case with a similar fact pattern set out the standard for allowing a school to proceed with a reassessment over the parent’s objection. It required a school district to show
1. that the parent has been provided an appropriate written reassessment plan to which the parent has not consented, and (2) that the student’s triennial reassessment is due, that conditions warrant reassessment, or that the student’s parent or teacher has requested reassessment. See Los Angeles Unified School District , 45 IDELR 264 (2006)
Agawam has shown that Parent was provided with an appropriate reassessment plan. However, it has not shown that conditions warrant reassessment. Student has participated in challenging courses and performed well academically without any special education services.
Although I do not find sufficient basis for overriding Mother’s lack of consent to a three-year evaluation, I do not find fault with Agawam’s attempt to utilize the Bureau of Special Education Appeals to attain consent. Both Ms. Connery and Mr. Provost testified sincerely regarding their desire to verify, through evaluation, that Student did not continue to require special education services. If Parent wishes for Student to receive special education services in the future, she will be required to provide consent to an evaluation so that Agawam can make a determination as to whether Student is eligible. Additionally, by bringing this issue before the Bureau of Special Education Appeals, Agawam has shielded itself from any future claims regarding the current IEP period.
ORDER
Based upon the foregoing, I find that there is insufficient justification for overruling Parent’s lack of consent to Student’s three-year evaluation.
By the Hearing Officer,
____________________________________
Catherine M. Putney-Yaceshyn
Dated: December 27, 2006
1
20 USC 1400 et seq .
2
MGL c. 71B.