COMMONWEALTH OF MASSACHUSETTS
SPECIAL EDUCATION APPEALS
In Re: Attleboro Public Schools
BSEA # 09-6002
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 April 2, 2009, Attleboro Public Schools (APS) filed a Request for Hearing in the above-referenced matter. The hearing was held on June 22, 2009 at the BSEA, 75 Pleasant St., Malden, Massachusetts, before Hearing Officer Rosa I. Figueroa. Those present for the proceedings were:
Gretchen Bjork, Speech & Language Pathologist, Attleboro Public Schools
Terry Hughes, Special Needs Resource Teacher, Attleboro Public Schools
Sylvia J. Day, Director of Special Education, Attleboro Public Schools
Regina W. Tate, Attorney for Attleboro Public Schools
Parent
The official record of the hearing consists of documents submitted by APS and marked as exhibits SE-1 through SE-15; documents submitted by the Parent and marked as exhibits PE-1 through PE-8 and PE-10; recorded oral testimony and oral closing argument. The record closed on June 22, 2009.
PROCEDURAL BACKGROUND
Upon receipt of APS’ Request for hearing, the BSEA issued a Notice of Hearing on April 3, 2009. This notice informed the Parties that the hearing would take place on April 23, 2009. On April 7, 2009, APS requested a postponement of the hearing, which went unopposed. On April 21, 2009 the postponement request was granted by Hearing Officer Catherine Putney-Yaceshyn, and the hearing was re-scheduled for June 22, 2009. On the day of the hearing, Hearing Officer Putney-Yaceshyn became ill and Hearing Officer Rosa Figueroa heard the case.
HEARING ISSUES
1. Whether the evaluations and assessments conducted by APS in October and November of 2008 were comprehensive and appropriate, and if not,
2. Whether Parent is entitled to an independent evaluation at APS’ expense?
POSITION OF THE PARTIES
Attleboro’s Position:
APS asserts that it conducted a comprehensive and appropriate re-evaluation of Student’s needs during October and November of 2008 and is therefore not responsible to fund an independent evaluation at Parent’s request.
APS further notes that Parent does not dispute the findings of the October and November 2008 evaluations nor has she objected to the current IEP as inadequate.
Parent’s Position:
Parent contends that additional multidisciplinary evaluations are necessary in order to adhere to the recommendations of Dr. David Urion of the Children’s Hospital in Boston. Parent trusts this expert and wishes to complete further testing in order to address possible attention deficit and learning disorders.
FINDINGS OF FACT
1. Student is an 8 year-old resident of Attleboro, Massachusetts (SE-2). Student’s eligibility and entitlement to special education is not at issue. The primary area of disability identified by the APS Team is Sensory-Hearing (SE-2).
2. Student currently attends Hill-Roberts Elementary School, where he has just completed second grade (2008-2009 school year).
3. Student does not qualify for free or reduced lunch program (testimony of Parent).
4. Student was early identified with moderate receptive and expressive language delays (SE-11). Student has received speech and language services as part of his IEP since September 2005 (See SE-13).
5. Student first underwent audiological evaluation at Boston Children’s Hospital on February 21, 2008, after failing a school hearing screening in January of the same year. Boston Children’s Hospital found mild to moderate sensorineural hearing loss bilaterally. Student underwent a myringotomy in April, 2008 and pressure equalization tubes were placed in both his ears (SE-13; SE-15). On September 12, 2008, Student was evaluated again by Dr. Laura Wheaton, Sc. D. Audiologist, whose specific recommendations included:
· Preferential classroom seating near the teacher and away from obvious sources of noise, such as open doors/windows, heating ventilation systems, etc.
· Close range communication strategies for at home and at school
· Follow-up with Dr. Whittimore
· FM system for use in the classroom (SE-15).
Accordingly, Student began using an FM system in September 2008 for all general education and specialty classes. His IEP also calls for a structured classroom (SE-2).
6. All of the assessments and evaluations referred to in this opinion, and performed in October and November of 2008, were conducted by APS pursuant to Massachusetts’ special education regulations 603 CMR 28.04(3) and (2)(a). APS delayed these re-evaluations of Student’s special education needs pending resolution of the Student’s hearing evaluations and medical procedures in spring and fall of 2008 (See 4; SE-10, SE-13).
7. A psychological assessment of Student was conducted by APS psychologist Janet Carfagna on October 3 and October 7, 2008. Ms. Carfagna administered the Wechsler Intelligence Scale for Children, 4 th edition (WISC-IV). The WISC-IV results revealed Student to be cognitively within the average range with a Full Scale IQ of 105. The examiner found Student to have “an age-appropriate knowledge of vocabulary, verbal and social reasoning, as well as average nonverbal reasoning skills” but also to have weak visual-perceptual skills. As part of this evaluation, Student’s Parent and teacher also completed the Conners’ Rating Scale 3 rd edition, which the examiner found to indicate clinically significant levels of inattention although Student may not meet the DSM-IV criteria for an ADHD diagnosis (SE-11).
8. A home assessment of Student was completed on October 9, 2008 by Parent and P. Merriss, the school nurse at Hill-Roberts Elementary School (SE-7).
9. On October 10, 2008, Student’s primary physician, Dr. Gerard Hass, performed a health assessment and examination of Student. Dr. Hass noted Student’s hearing loss and recommended preferential seating in class (SE-8).
10. APS speech-language pathologist Gretchen Bjork administered a full speech and language evaluation of Student on October 6, 16, and 17, 2008. Ms. Bjork testified that she has worked with the Student since kindergarten and she has seen him make substantial progress, especially since his hearing-loss was identified and treated. The only subtest on which Student scored below average was expressive vocabulary, which Ms. Bjork noted is commonly one of the last areas to develop (testimony of Gretchen Bjork). Ms. Bjork testified that the speech and language evaluation results were consistent, demonstrated very little “scatter”, and that in her professional opinion, no further speech and language testing is necessary (testimony of Gretchen Bjork).
11. On October 14, 21, and 27 Student underwent Educational Achievement testing by special educator Terry Hughes. Ms. Hughes administered the Weschler Individual Achievement Test-II (WIAT-II) on which Student scored mostly in the average range. However, he presented with some weakness in reading comprehension (SE-10). Ms. Hughes testified that the low-average score in reading comprehension was not surprising given Student’s profile and history of speech and language delays. She remained confident in Student’s cognitive abilities, noting his high scores on pseudo-word decoding, a skill which is more explicitly taught by special educators at APS. Ms. Hughes did not believe that Student required additional testing (testimony of Terry Hughes).
12. APS referred Student to Linda Thomas for a physical therapy screening on October 27, 2008. Ms. Thomas found that Student had age appropriate gross motor skills and did not require a full physical therapy evaluation (SE-12).
13. A Classroom Assessment conducted on October 31, 2008 noted that Student had some trouble maintaining attention and staying on task (SE-4).
14. An Educational Assessment was also performed by APS on October 31, 2008 (SE-5).
15. On November 3, 2008, Student’s educational Team met at APS to synthesize the results of the various evaluations and draft a new IEP covering the period from November 3, 2008 through November 2, 2009. The IEP provides for a special education teacher to assist Student with reading and writing in his general education English Language Arts classroom (7 sessions of 45 minutes per month). Student was also offered seven speech/language therapy sessions of 30 minutes each every month. Parent fully agreed to and accepted this IEP on November 10, 2008 (SE-2; testimony of Terry Hughes). Parent does not currently contest the adequacy of this IEP (testimony of Parent).
16. On March 10, 2009, Dr. David Urion of Boston Children’s Hospital performed a neurological consultation of Student. Dr. Urion particularly noted Student’s underperformance and “scatter” on the Boston Naming Test in his analysis. Dr. Urion expressed concern that these results may not be explained by hearing loss alone; he went on to recommend “a timelier multidisciplinary evaluation” before embarking on further treatment (SE-1). Parent testified that she and Dr. Urion felt further testing was particularly important before they decide whether medication to address the ADHD was warranted (testimony of Parent).
17. APS speech-language pathologist Gretchen Bjork testified to professional doubts concerning the reliability of the Boston Naming Test, which she does not use in APS speech and language evaluations. According to Ms. Bjork, the Boston Naming Test was normed not on young children but on stroke patients (testimony of Gretchen Bjork).
18. During her testimony, Parent indicated there had been some confusion in passing along the results of APS’ October and November 2008 evaluations of Student to Dr. Urion. The neurology department at Boston Children’s Hospital certainly had Student’s materials prior to the March 10, 2009, but it is not certain that Dr. Urion had seen the results of those evaluations at the time he made his recommendations. Parent did feel the need to resend the October and November 2008 evaluations in April of 2009 (testimony of Parent).
19. Parent requested that APS fund an independent evaluation of Student consistent with Dr. Urion’s recommendations.1
20. On April 2, 2009 APS sent Parent a notice denying her request for an independent evaluation at the school district’s expense (PE-10). On the same day, APS filed a hearing request with the BSEA.2
CONCLUSIONS OF LAW
Student is an individual with a disability falling within the purview of the Individuals with Disabilities Education Act3 (IDEA) and the state special education statute.4 As such, Student is entitled to a free appropriate public education (FAPE).5 Student’s eligibility status, entitlement to FAPE, and current IEP services and accomodations are not in dispute. In this matter APS seeks a determination by the BSEA that its evaluation of Student was comprehensive and appropriate, and that it is therefore, not responsible to fund the independent evaluation sought by Parent.
Upon consideration of the testimony and documents admitted in evidence, and relying on the Findings of Fact section of this decision, I conclude that the evidence presented by APS supports its claim that its evaluation is comprehensive and appropriate. In this regard, APS 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. 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).
The federal regulations further provide that if the requisite conditions are met, the evaluation must be provided at public expense, that is,
that the public agency either pays for the full cost of the evaluation or ensures that the evaluation is otherwise provided at no cost to the parent, consistent with 300.103. 34 CFR 300.502(a)(3)(ii).
This means that the school district must pay the full cost of the evaluation sought by parent or ensure that the evaluation will be provided at no cost to the parent. Consistent with this provision, the school district is required to supply the parent with a list of service providers who abide by the state guidelines regarding competency to perform the evaluation as well as the rate structure for independent evaluations.8 States are left to regulate further consistent with federal law.
Additionally, federal regulations discourage unnecessary delays by school districts when a parent requests an independent evaluation by mandating that the school district either pay for the evaluation or request a hearing when it believes that its evaluation is appropriate. 34 CFR 300.502(b)(2).9
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.
(a) All independent education evaluations shall be conducted by qualified persons who are registered, certified, licensed or otherwise approved and who abide by the rates set by the state agency responsible for setting such rates.10 Unique circumstances of the student may justify an individual assessment rate that is higher than that normally allowed.
In sum, both the federal and Massachusetts regulations provide that the right to an independent evaluation arises after the school district has first conducted an evaluation in the area parent disputes. Massachusetts Regulations further provides that
If the parent is requesting an independent education evaluation in an area not assessed by the school district, … the school district shall respond in accordance with the requirements of federal law. 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. (Emphasis added) If the Bureau of Special Education Appeals finds that the school district’s evaluation was comprehensive and appropriate, then the school district shall not be obligated to pay for the independent education evaluation requested by the parent. 603 CMR 28.04(5)(d).
In the instant case, the evidence shows that APS complied with the necessary three year evaluations pursuant to 603 CMR 28.04(3), notified Parent of the results of those evaluations, convened the Team and created an IEP responsive to those results, and further made the results available to Boston Children’s Hospital (See Facts 5-16 and 18).
The evidence shows that APS denied Parent’s request for an independent evaluation and filed a request for hearing with the BSEA on April 2, 2009, consistent with 603 CMR 28.04(5)(d), on the basis that its evaluation was comprehensive and appropriate (testimony of Gretchen Bjork; Terry Hughes).
The evaluations conducted in October and November of 2008 sought to gain knowledge regarding Student’s suspected areas of need and the services his sensory-hearing deprivation would require. APS deliberately gave Student time to be thoroughly audiologically evaluated, and then to adjust to the FM system, before evaluating his educational needs (See SE-10; SE-13). APS also purposely elected the WIAT-II and the WISC-IV as tests that complemented each other well to provide a complete picture of Student (testimony of Terry Hughes). Cognitive ability, learning style, and strengths were appropriately assessed by well-trained individuals, who particularly in the case of Gretchen Bjork and Terry Hughes were very familiar with Student and his history (testimony of Gretchen Bjork; Terry Hughes; Parent). The APS Team then proposed an IEP which Parent accepted in full as she believed that it properly addressed Student’s difficulties with speech and language delays as well as hearing loss.
In sum, Student was found to require specialized assistance to address a documented disability that impacted negatively upon his ability to use expressive language and vocabulary. APS’ evaluation resulted in a finding of eligibility and the drafting of an IEP, which has been accepted by Parent (SE-2). According to Ms. Hughes and Ms. Bjork, both of whom are experienced in their fields and well-acquainted with Student and his needs, the APS October and November 2008 evaluations were comprehensive and appropriate (testimony of Gretchen Bjork; Terry Hughes). Ms. Hughes testified that attention was indeed an ongoing issue for Student, and that he needed re-direction, routine, and reminders throughout the day, but that she had a good handle on the Student’s needs. Ms. Hughes also believed that Student was making progress and adequately accessing the curriculum, although he is not currently taking medication for ADHD (testimony of Terry Hughes). Parent agrees that Student has been making progress (testimony of Parent). The testimony and documents admitted in evidence also show that Parent did not clarify which of APS’ evaluations were inadequate.
Additionally, there remains the uncertainty over whether Dr. Urion had reviewed the APS evaluations from October and November 2008 at the time of making his recommendations (See Fact 18). Dr. Urion’s report of March 10, 2009 refers only to “previous school testing [that] has demonstrated some rather substantial scatter in terms of language testing” (SE-1). Ms. Bjork testified that although earlier testing had shown scatter among the subtests, Student’s October and November 2008 assessments had not shown much scatter and were in fact very consistent (testimony of Gretchen Bjork). Dr. Urion has never discussed the evaluations (or the Student, generally) with APS personnel (testimony of Parent).
APS met its burden of persuasion in showing that its evaluations were comprehensive and appropriate. As such, it is not responsible to provide public funding for the independent evaluation sought by Parent.
ORDER
1. APS’ evaluations of October and November 2008 are found to be comprehensive and appropriate.
2. APS is not responsible to provide public funding for the independent evaluation sought by Parent.
So Ordered by the Hearing Officer,
___________________________
Rosa I. Figueroa
Dated: July 10, 2009
I would like to recognize the assistance and contributions provided by BSEA legal intern Tami L. Fay in drafting this decision.
1
No evidence has been submitted regarding the specific date on which APS received Parent’s request for independent evaluation. Presumably, Parent made the request after receiving Dr. Urion’s recommendations from the March 10, 2009 evaluation.
2
As neither party raised the issue of timeliness of APS’ request for hearing, it is presumed that APS filed its request for hearing within 5 school days of receipt of the independent evaluation request, as required by 603 CMR 28.04(5)(d).
3
20 USC 1400 et seq .
4
MGL c. 71B.
5
MGL c. 71B, ss. 1 (definition of FAPE), 2, 3.
6
Schaffer v . Weast , 126 S.Ct. 528 (2005) places the burden of proof in an administrative hearing on the party seeking relief.
7
See 20 USC 1415(d)(2)(A).
8
When a parent requests an independent evaluation, the federal regulations further require school districts to provide parents with “… information about where an independent educational evaluation may be obtained, and the agency criteria applicable for independent educational evaluations as set forth in paragraph (e) of this section”, to ensure that parents are able to select providers who act in concert with state mandates . 34 CFR 300.502. No challenge was raised on this issue at hearing.
9
The school district is also required to request a hearing if it is challenging the independent evaluation obtained by the parent on the basis of failure to meet agency criteria. 304 CFR.502(b)(2)(ii).
10
In Massachusetts the agency responsible for setting the rates for independent evaluations is the Division of Health Care Finance and Policy.