COMMONWELTH OF MASSACHUSETTS
DIVISION OF ADMINISTRATIVE LAW APPEALS SPECIAL EDUCATION APPEALS
In Re : Bridgewater-Raynham Public Schools v. Student
BSEA # 11-6444
Ruling on Parents’ Motion To Dismiss
On April 4, 2011, in response to Bridgewater-Raynham Public Schools’ (BR) Request for Hearing in the above-referenced matter, Parents’ advocate filed a and Motion to Oppose and Dismiss the Hearing Request. BR1 responded on April 5, 2011, with a Motion Opposing Parents’ Motion to Oppose and Dismiss. Neither Party requested a hearing on the motions.
Facts:
1. Student is a sixth grade special education eligible student who resides with his parents in BR. He is receiving services under an IEP fully accepted by Parents on June 15, 2010 (SE-2).
2. During the summer of 2010 Parents filed a request for Hearing with the Bureau of Special Education Appeals (BSEA). This Hearing Request was later withdrawn when the Parties reached an agreement during the Resolution session.
3. At the Resolution session held on July 19, 2010, the Parties agreed to a speech and language, central auditory processing and a complete educational assessment of Student to be completed by BR and the READS Collaborative (PE-1)2 .
4. Sandi Fanning, CAGS, NCSP-school psychologist, and Diane Howe, special education teacher of BR performed a psycho-educational evaluation on June 2010 (WIAT-II) and July 2010 (WISC-IV & Keymath 3)(PE-3).
5. An Audiology Evaluation, Central Auditory Processing Test Battery, was completed on August 18, 2010 by Evelyn Rankin, MS CCC-SLP, of READS, Inc. (PE-4). This report was revised for typographical errors on September 2, 2010.
6. On August 18, 2010, Evelyn Rankin performed a speech and language evaluation (PE-5). The evaluation notes that Student was referred by BR for this evaluation ( Id. ).
7. Student’s Team convened on September 10, 2010, to discuss the results of the evaluations. At parental request minor changes were made to Student’s last agreed upon IEP covering the period from May 3, 2010 to May 2, 2011, reflected in an Amendment dated October 8, 2010 (SE-5). .
8. On October 25, 2010 Parents’ advocate wrote to BR requesting an independent evaluation to be performed by Geraldine Cassens, Ph.D.
9. On or about October 28, 2010, Mr. Mark Mosher, M.Ed., C.A.G.S., BR’s Administrator of Special Education, wrote to Parents stating that he had received Parents’ request for independent evaluation on October 27, 2010. In the letter Mr. Mosher requests that Parents submit a letter stating the particular evaluation with which they disagree, the reasons why they disagree with the district’s evaluations, provide the name, address and telephone number of the desired independent evaluator, and submit financial income information as explained in a Massachusetts Department of Elementary and Secondary Education (DESE) advisory enclosed with the letter. Mr. Mosher’s letter further explains that procedures under which the district would fund the independent evaluation if Parents qualify for one (SE-4). According to Parents’ advocate the letter was sent to Parents but not to her (SE-3).
10. Student’s Team convened again on November 1, 2010, at Parents’ request. Again, at Parents’ request, Student’s IEP was further amended as a result of this meeting (SE-6; PE-7). Parents did not sign either this or the October 8, 2010 Amendment ( Id. ).
11. Electronic mailings of November 4 and November 5, 2010 between Parent and Sandi Fanning of BR state that BR received Parents’ request for independent evaluation and that the request was forwarded to Mr. Mark Mosher (SE-4).
12. On December 9, 2010, Parents filed a complaint with DESE’s Program Quality Assurance. PQA issued a letter requesting a Local Report from BR on December 23, 2010, but shortly thereafter it was notified that the matter had been scheduled for mediation with the BSEA (SE-6).
13. On January 14, 2011, upon learning that the parties had agreed to proceed to mediation, PQA issued a letter explaining that the complaint would be set aside (SE-6). According to Parents, the mediation scheduled for January 19, 2011, was cancelled due to inclement weather and on February 2, 2011, Parents’ advocate notified PQA that mediation was no longer an option and that PQA should proceed with their investigation. PQA re-opened Parents’ complaint on February 2, 2011 (SE-6).
14. On February 18, 2011, BR requested Parents’ consent to evaluation in the areas of speech and language and psycho-educational (SE-1).
15. On or about March 1, 2011, DESE’s Program Quality Assurance issued a report reflecting BR’s response to PQA’s investigation. Regarding Parents’ complaints one and two dealing with implementation of the IEP and use of the IEP process, no irregularities were noted. Regarding Parents’ complaint number three addressing the request for independent evaluation, the report notes that a letter was sent to Parent within five school days and that BR never received a response from Parents to its request (SE-5).
16. On March 24, 2011, BR requested a Hearing before the BSEA on the issue of substitute consent for its evaluation.
Standard on a Motion to Dismiss :
Rule 17B of the Hearing Rules for Special Education Appeals , and 801 CMR 1.01(7)(g)3 of the Massachusetts Executive Office of Administration and Finance Adjudicatory Rules of Practice and Procedure applicable to Special Education Appeals provide that a Hearing Officer may grant a motion to dismiss if the moving party fails to state a claim upon which relief can be granted. Rule 12(b)(6) of the Federal Rules of Civil Procedure also allow a motion to dismiss when the plaintiff can prove no set of facts in support of his or her claim entitling the plaintiff to relief. Consistent with the aforementioned rules and regulations, a BSEA hearing officer may dismiss a case if no relief can be granted under state or federal special education laws or Section 504 of the Rehabilitation Act, after considering as true all of the allegations made by the party opposing dismissal and drawing all reasonable inferences in favor of said party. Here, the Party opposing dismissal is BR, therefore, Parents’ Motion to Dismiss must be denied if after “accepting as true all well-pleaded factual averments and indulging all reasonable inferences in [BR’s] favor…, recovery [is justified] under any applicable legal theory.” Calderon-Ortiz v. LaBoy-Alvarado , 300 F.3d 60, 63 (1 st Cir. 2002).
In the instant case, Parents argue through that BR’s request violates Parents’ procedural safeguards regarding independent evaluations, delays Parents’/Student’s right to a an investigation by the Department of Elementary and Secondary Education (DESE) Program Quality Assurance (PQA), and state that the request for substitute consent is a creative attempt to circumvent process, getting “a second bite at the apple.” According to Parents, BR evaluated Student on August 18, 2010 and on February 17, 2011 sought Parental consent to evaluate the same areas. Lastly, Parents challenge the BSEA’s jurisdiction over Parents as well as the school district’s ability to force Parents to consent to the evaluation. Additionally, Parents ask that BR be ordered to provide Parents with the Independent Evaluation allegedly requested by them in October 2010.
In its opposition, BR argues that the BSEA has jurisdiction over this matter and states that the fact that Parents have previously complained to the PQA Division of DESE does not preclude BR from seeking resolution of the disputed issues before the BSEA. Regarding substitute consent, BR states that Parents ignore case law which is precisely on point. Specifically, BR cites to In Re: Lowell Public Schools , BSEA # 11-0039 (Crane, September 10, 2010), where the Hearing Officer noted
Courts have made it clear that as a general rule, a Parent may not preclude a school district from evaluating their son or daughter, nor may a parent force a school district to rely upon a parent’s own evaluation. Rather, if a parent desires special education services, he or she may be required to allow the school district to conduct its own assessment for the purpose of the school district determining the extent of the student’s special education needs and how those needs should be addressed. Id , at p.2.
BR therefore asserts that nothing in Parents’ Motion supports the BSEA’s lack of jurisdiction over the claims or that BR has acted improperly in seeking to resolve the controversy.
Jurisdiction of the BSEA:
The BSEA has jurisdiction to resolve educational disputes in accordance with 20 U.S.C. 1401 et seq. (the Individuals with Disabilities Education Act, “IDEA”), 29 U.S.C. 794 (Section 504 of the Rehabilitation Act of 1973) and the regulations promulgated under those statutes, 34 CFR 300 and 34 CFR 104 respectively, as well as pursuant to Massachusetts General Laws c. 71B, and its implementing regulations, 603 CMR 28.00. Specifically, the BSEA has jurisdiction over disputes among parents, school districts, private schools, and state agencies involving any matter concerning the provision of a free appropriate public education to a student with special needs. As such, the BSEA has jurisdiction over disputes regarding evaluation of students in order to ascertain the student’s special needs and how to appropriately address those needs through special education and related services.
The jurisdiction of the BSEA is delineated under 603 CMR 28.08(3) which provides
In order to provide for the resolution of differences of opinion among school districts, private schools, parents, and state agencies, the Bureau of Special Education Appeals, located with the Department, shall conduct mediations and hearings to resolve such disputes. The jurisdiction of the Bureau of Special Education Appeals over state agencies, however, shall be exercised consistent with 34 CFR §300.154(a). The hearing officer may determine, in accordance with the rules, regulations and policies of the respective agencies, that services shall be provided by the Department of Social Services, the Department of Mental Retardation, The Department of Mental Health, the Department of Public Health, or any other state agency or program, in addition to the IEP services to be provided by the school district. Mediations and hearings shall be conducted by impartial mediators and hearing officers who do not have personal or professional interests that would conflict with their objectivity in the hearing or mediation and who are employed to conduct those proceedings.
Subsection 3(a) specifically addresses the rights of a parent or of a school district to request a hearing at any time over matters concerning, among other things, evaluation of eligible students. Specifically, subsection (a) states
A parent or a school district, except as provided in 603 CMR 28.08(3)(c) and (d), may request mediation and/or a hearing at any time on any matter concerning the eligibility, evaluation, placement, IEP, provision of special education in accordance with state and federal law, or procedural protections of state and federal law for students with disabilities. A parent of a student with a disability may also request a hearing on any issue involving the denial of the free appropriate public education guaranteed by Section 504 of the Rehabilitation Act of 1973, as set forth in 34 CFR §§104.31-104.39. 603 CMR 28.08(3).
Consistent with the laws and regulations delineated supra it is clear that the BSEA has jurisdiction to hear the claims brought by BR regarding Student’s evaluation.
Whether BR’s request violates Parents’ procedural safeguards regarding independent evaluations, in effect delaying Parents’/Student’s right to a an investigation by PQA:
Parents’ allegations assume that an investigation by PQA may trump a BSEA process when in fact the opposite is true.
The DESE PQA Services, Compliance and Monitoring, Problem Resolution System Information Guide explains that Federal Special Education law prohibits the DESE from investigating a complaint when the Parties are engaged in a BSEA proceeding that addresses the same issues. This guidance is found in question seven (7) stating:
May the Problem Resolution System respond to a complaint at the same time that the problem is the subject of a proceeding at the Bureau of Special Education Appeals?
No; Federal special education law does not allow the Department to investigate a complaint in the PRS process at the same time that the parties are trying to resolve the complaint in mediation or a hearing before the BSEA. If you have sent a written complaint to the Department about the same issue that is before the BSEA, the Department must “set aside” or “hold” your complaint until the matter before the BSEA has concluded. (Emphasis supplied).
If mediation is successful, then the problem has been resolved and you should contact PQA to withdraw your complaint. Let PQA know if you want to proceed with your complaint in PRS if mediation is unsuccessful and you have not requested a hearing at the BSEA.
When the BSEA hearing officer makes his or her decision about the case, the hearing officer’s decision is binding. That means the Department cannot change it, and you cannot file a complaint with the Department on that same issue. The Department can only review issues that were not part of the BSEA hearing.
However, you may file a request for hearing with the BSEA even if the Department has made a finding in response to your written complaint. The purpose of the BSEA hearing is not to review or reconsider the Department’s PRS decision, but to consider the matter in a new due process proceeding. The BSEA’s order or decision will be binding and cannot be reviewed by the Department.
Therefore, BR’s request for hearing over matters that Parents may have brought to PQA’s attention in no way violates any rights conferred to Parents under special education law and regulations. Additionally, Parents have already brought complaints to PQA which were addressed in a report dated March 1, 2011. Parents may file any complaint they wish with PQA as long as the complaint is over issues not addressed by the BSEA.
Parents argue that BR’s intentions are to derail or delay Parents’ right to a PQA investigation. In its request for Hearing, BR sought substituted consent for an evaluation and anticipated that the matter would be removed from PQA. Without a hearing on the merits it is not possible for the Hearing Officer to ascertain what BR’s motives are in requesting a Hearing other than what the hearing request states on its face. As such, at this juncture, there is no evidence to conclude that BR’s actions violate Parental rights under special education law and regulations.
Whether BR’s request for substitute consent to conduct an evaluation constitutes “a second bite at the apple.”
According to Parents, BR evaluated Student on August 18, 2010 and on February 17, 2011 sought Parental consent to evaluate the same areas previously evaluated.
The documents submitted by the Parties show the consent for evaluation forwarded by BR to Parents on February 17, 2011, identifies the areas of speech and language as well as psycho-educational as those for which BR seeks consent to evaluate Student. Parents are correct that these two areas were already addressed in the evaluations performed by Sandy Fanning and Diane Howe of BR and Evelyn Rankin of READS, Inc. during the summer of 2010, pursuant to an agreement entered into by the Parties on July 19, 2010 (PE-1; PE-3, PE-5; SE-1). To grant BR’s request for substitute consent to perform the same evaluations it already conducted only seven months prior would indeed be granting it two bites at the apple.
BSEA’s jurisdiction to order school-based testing prior to an independent evaluation and Parents’ Request for an independent evaluation:
There is no question that school districts have a right to conduct school-based testing or that this is a pre-requirement to a parent’s right to independent evaluation. Furthermore, the BSEA has jurisdiction to order evaluations where these are warranted.
The IDEA3 regulations confer upon parents of disabled students the right to proceed with independent evaluations conducted by qualified examiners at public expense.4 34 CFR 300.502. In the federal regulations, the term “public agency” is equivalent to local educational agency, the 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 the evaluation must be provided at public expense.5 This regulation requires school districts to either pay the full cost of the evaluation sought by parent or offer parents an opportunity to obtain the desired independent evaluation by a provider who agrees to abide by the guidelines set by a state. Consistent with federal law, states are left to regulate further. Furthermore, school districts are required to provide parents with information regarding where to obtain an independent evaluation that abides by the state’s criteria.6
Federal regulations discourage unnecessary delays by school districts when a parent requests an independent evaluation and mandate that the school district either pay for the evaluation or request a hearing when it believes that its evaluation is appropriate and/ or when the evaluation obtained by the parent does not meet agency criteria. 34 CFR 300.502(b)(2).
Consistent with federal law and regulations, the Massachusetts special education regulations provide parents a right to independent evaluations. 603 CMR 28.04(5)(a) 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.7 Unique circumstances of the student may justify an individual assessment rate that is higher than that normally allowed.
The aforementioned 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. The Massachusetts regulations further provide that
If the parent is requesting an independent education evaluation in an area not assessed by the school district, the student does not meet income eligibility standards, or the family chooses not to provide financial documentation to the district establishing family income level, 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. 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). (Emphasis supplied).
This regulation requires that a school district either pay for the evaluation or request a hearing before the BSEA within five school days of the date of receipt of a parent’s request for an independent evaluation if the parent seeks an evaluation in an area not previously assessed by the school district, or when no financial documentation regarding family income level is provided, or when the student does not meet income eligibility standards.
In the instant case, BR conducted a psycho-educational, speech and language and an audiology evaluation in the summer of 2010, thereby meeting the first prong of the federal and state regulations, requiring that a school-based evaluation be performed before a parent has the right to request an independent evaluation in one of the areas evaluated by the school, or in an area not previously evaluated by the school. As such, Parents had a right to request an independent evaluation when they did in October 2010. Once on notice of Parents’ intentions, the record shows that BR failed to respond appropriately to Parents’ request as explained below. However, in making this determination, I note that Parents’ advocate’s letter failed to provide BR with the information necessary for BR to have been in a position to respond appropriately.
Consistent with the federal mandate that schools act expeditiously when they receive requests for independent evaluations, 603 CMR 28.04(5)(d) required BR to either pay for the evaluation sought by Parents at the rate set by the Massachusetts is the Division of Health Care Finance and Policy, or, request a hearing before the BSEA within five school days of the date on which it received Parents’ request for the independent evaluation, while it sought additional information from Parents. Once the request is received, the school district is on notice and the clock starts ticking with respect to the two options afforded under the Massachusetts regulation; that is, pay for the evaluation, or request a hearing. No other option is afforded under the Massachusetts regulations. As such, the letter sent to Parents by Mr. Mosher was insufficient to warrant tolling of the five days for purposes of requesting the Hearing.
From Mr. Mosher’s letter and the documents submitted, it is unclear whether BR intended to pay for the evaluation and was merely seeking additional information from Parents. The letter forwarded by Parents’ advocate provided BR with the requisite notice regarding Parents’ intention to proceed with an independent evaluation, but was lacking in requisite information needed by BR. In effect, it prevented BR from responding with anything other than the letter from Mr. Mosher seeking the required information. The advocate’s letter states that an independent evaluation is sought, but does not state in what areas. It provides the name of an evaluator but not information regarding her credentials to conduct the particular evaluation she would be employed to conduct. The letter also fails to provide any information as to whether the proposed evaluator accepts rate setting rates. In essence, in providing inadequate information, Parents’ advocate created a situation that left Parents in the precarious position of seeking several months later, an order from the BSEA to proceed with the independent evaluation. Had the necessary information been provided at the onset much of the current situation might have been avoided.
Viewing the facts in the light most favorable to BR it is evident that BR can present no facts on which relief can be granted with respect to its request for substitute consent, Parents’ Motion to Dismiss is therefore GRANTED .
At this time, BR may not perform a second evaluation of Student in the areas of speech and language, audiology or psycho-education. As soon as Parents submit in writing a request for independent evaluation that contains the information listed below, BR shall fund the evaluation at the rate set by the Massachusetts Division of Health Care Finance and Policy for the particular evaluation. Parents’ letter must contain:
1. The area that Dr. Geraldine Cassens is proposed to assess.
2. Information regarding Dr. Cassens qualifications, certifications and licensure.
3. A statement that Dr. Cassens will abide by the rates set by the Massachusetts Division of Health Care Finance and Policy for the particular evaluation.
I further note that the independent evaluation report must be submitted to BR once it is available and that said written report must contain a summary of the “procedures, assessments, results, and diagnostic impressions as well as educationally relevant recommendations for meeting identified needs of the student.” 603 CMR 28. 04 (e).
So Ordered by the Hearing Officer,
______________________________________
Rosa I. Figueroa
Dated: April 22, 2011
1
BR is represented by Attorney Mary Ellen Sowyrda.
2
Parents’ exhibits were not numbered and tabbed as required under Rule IX of the Hearing Rules for Special Education Appeals . In the future, Parents shall comply with the aforementioned rule when submitting any exhibit they wish to have considered.
3
See 20 USC 1415(d)(2)(A).
4
“… 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).
5
“…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).”
6
“… 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. 34 CFR 300.502.”
7
The agency responsible for setting the rates for independent evaluations in Massachusetts is the Division of Health Care Finance and Policy.