Carol and Attleboro Public Schools – BSEA # 09-3926



<br /> Carol and Attleboro Public Schools – BSEA # 09-3926<br />

COMMONWEALTH OF MASSACHUSETTS

In re: Carol1 and Attleboro Public Schools

BSEA# 09-3926

BUREAU OF SPECIAL EDUCATION APPEALS

RULING ON PARENT’S MOTION FOR PARTIAL SUMMARY JUDGMENT

BACKGROUND

On January 5, 2009 the Attleboro Public Schools (APS) filed a Hearing Request with the BSEA which was assigned the case number 09-3926. APS’ Hearing Request sought two determinations: 1) That APS’ three year reevaluation of Carol was complete and appropriate, therefore APS is not required to fund Parent’s request for an independent evaluation; and 2) That APS’ proposed Individual Education Plans (IEPs) covering 3/08-3/09 and 11/08-11/09 are reasonably calculated to provide Carol with a Free and Appropriate Public Education (FAPE) within the least restrictive educational environment. On January 26, 2009 Parent filed: 1) A Response to APS’ Hearing Request; 2) Parent’s Motion for Partial Summary Judgment (PMPSJ) with a Memorandum of Law; and 3) Parent’s Hearing Request. Parent’s Hearing Request sought two determinations: 1) That APS’ two proposed IEPs do not provide Carol FAPE; and 2) That Learning Prep School (LPS) does provide Carol FAPE. Parent’s Hearing Request was assigned the case number 09-4284. Both case were assigned to Hearing Officer Raymond Oliver. On February 3, 2009 APS filed its Opposition to PMPSJ. On February 5, 2009 APS filed its Response to Parent’s Hearing Request. On February 11, 2009 Parent filed a Reply to APS’ Opposition to PMPSJ. On February 17, 2009 APS submitted a letter in reply as further opposition to PMPSJ. On February 18, 2009 Parent filed a letter in response to APS’ further reply. A pre-hearing conference call took place regarding both of these cases in late February 2009.

The sole issue to be decided in this ruling is limited to whether or not APS is required to fund Parent’s request for an independent evaluation (IE).

STATEMENT OF POSITIONS

APS’ position is that its three year reevaluation of Carol was complete and appropriate and that Parent has not indicated that she disagrees with the results obtained in APS’ reevaluation. Therefore, APS contends that it is not required to fund Parent’s requested IE.

Parent’s position is that there are no material issues in dispute regarding this issue and that, pursuant to M.G.L. c. 71B s.3 and 603 CMR 28.04(5)(c)(1) Parents are entitled to judgment on this issue as a matter of law. Parent contends that the requested IE is equivalent to the types of assessments done by APS; that Carol has been documented as eligible for free school lunch; and that Parent’s very request for an IE is proof of the fact that Parent disagrees with APS’ reevaluation.

FEDERAL LAW AT ISSUE

20 U.S.C.§1415 Procedural safeguards provides, in pertinent part:…
(b) Types of procedures. The procedures required by this section shall include the following:

1. An opportunity for the parents of a child with a disability to…. obtain an independent educational evaluation of the child…

34 CFR 300.502 Independent educational evaluation provides, in pertinent part:
(b) Parent right to evaluation at public expense. 1) A parent has the right to an independent educational evaluation at public expense 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.

(2) If a parent requests an independent educational evaluation at public expense, the public agency must, without unnecessary delay, either –
(i) File a due process complaint to request a hearing to show that its evaluation is appropriate; or
(ii) Ensure that an independent educational evaluation is provided at public expense, unless the agency demonstrates in a hearing pursuant to §§300.507 through 300.513 that the evaluation obtained by the parent did not meet agency criteria.

(3) If the public agency files a due process complaint notice to request a hearing and the final decision is that the agency’s evaluation is appropriate, the parent still has the right to an independent educational evaluation, but not a public expense.

(4) If a parent requests an independent educational evaluation, the public agency may ask for the parent’s reason why he or she objects to the public evaluation. However, the explanation by the parent may not be required and the public agency may not unreasonably delay either providing the independent educational evaluation at public expense or requesting a due process hearing to defend the public evaluation.

MASSACHUSETTS LAW AT ISSUE

M.G.L. c. 71B s. 3 provides, in pertinent part:

Upon completion of said (school’s) evaluation, the child’s parents may obtain an independent evaluation at school committee expense, from child evaluation clinics or facilities approved by the department jointly with the departments of mental health, mental retardation and public health, provided that the school committee may initiate within five school working days of the request, a hearing with the bureau of special education appeals to show that it evaluation is appropriate, in a accordance with the provisions of the Individuals with Disabilities Education Act and regulations promulgated, pursuant thereto; provided, however , that the parents may choose, on a voluntary basis, to share the costs of the independent evaluation with the school committee pursuant to a sliding fee scale established in regulations issued by the department pursuant to this section, in which case the school committee shall pay its share of the costs in accordance with the scale; provided, that, if the child’s family income does not exceed 400 percent of the federal poverty level established by the United States department of health and human services, parents shall pay no cost ; Emphasis added.

603 CMR 28.04 (5) Independent educational evaluation provides, in pertinent part:
(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……

(c) Public funding of independent education evaluations – When the parent requests public funding for an independent education evaluation, the district shall abide by the following provisions for a sliding fee scale:

1. If the student is eligible for free or reduced cost lunch or is in the custody of a state agency with an Educational Surrogate Parent appointed in accordance with federal law, then the school district shall provide, at full public expense, an independent education evaluation that is equivalent to the types of assessments done by the school district. No additional documentation of family financial status is required from the parent .

2. If the family financial status is not known, the district shall offer the parent information about the sliding fee scale and the opportunity to provide family income information to determine if the family may be eligible for public funding of all or part of the costs of an independent education evaluation. Provision of financial information by the family is completely voluntary on the part of the family. The lack of financial information provided by the family will disqualify the family from such additional public funding of all or part of the costs of an independent education evaluation under 603 CMR 28.04(5)(c) but shall not limit the rights of parents to request public funding under 603 CMR 28.04(5)(d)…..
(d) 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. Emphasis added.

RULING

Parent’s Motion For Partial Summary Judgment is GRANTED .

My analysis follows.

Based upon the above cited statutes and regulations federal and Massachusetts special education law regarding IE’s are essentially identical, in that under both the Local Education Authority (LEA) must either pay for any parentally requested IE or seek a hearing challenging the parentally requested IE on the basis that the LEA’s IE is complete and appropriate. However, there is one significant exception. Massachusetts special education law and regulations provide for full LEA funding of parentally requested IE’s if the child’s family income does not exceed 400% of the federal poverty level/the student is eligible for free or reduced cost lunch. APS does neither dispute the fact that Carol is eligible for free school lunch or that the IEs requested by Parent are equivalent to the types of assessments done by APS.

APS argues that the Massachusetts law is in conflict with the federal statute/regulation; that such state provisions violate APS’ right under federal law to request a due process hearing; and therefore such state provisions are ultra vires (prohibited, beyond its powers or authority – Black’s law dictionary). I have carefully considered APS’ argument. Clearly M.G.L. c.71B s.3 and 603 CMR 28.04(5) grant low income parents in Massachusetts additional protections that are not found in 20 U.S.C. §1400 et seq. or its regulations 34 CFR 300 et seq.

I conclude that Massachusetts special education law prevails in this situation. Federal Courts in the First Circuit have consistently ruled that state special education law cannot reduce or restrict educational standards or services below the federal special education law threshold. The First Circuit has consistently ruled that state special education law can extend educational standards and services beyond which or higher than federal special education law requires. These concepts are succinctly summarized in Mr. I. v. Maine School Administrative District No. 55 480 F. 3d. 1, 10-11 (1 st Cir 2007):

Though the IDEA “establishes a basic floor of education” for children with disabilities, guaranteeing them “[a] free appropriate public education,” 20 U.S.C. §1412(a)(1)(A) , it does not displace the states from their traditional role in setting their own education policy. Burlington, 736 F.2d at 788-89 ; see also J.D., 224 F.3d at 65 ; Daniel R.R. v. State Bd. Of Educ., 874 F.2d 1036, 1044 (5 th Cir. 1989) . Each state thus remains free to calibrate its own educational standards, provided it does not set them below the minimum level prescribed by the statute. Roland M., 910 F.2d at 987 ; Burlington, 736 F.2d at 788-89 .

Also in David D. v. Dartmouth School Committee 775 F.2d 411, 416-423 (1 st Cir. 1985) and Town of Burlington v. Department of Education 736 F. 2d 773, 792 (1 st Cir. 1989) the First Circuit ruled that states are:
free to exceed, both substantively and procedurally, the protection and services to be provided to its disabled children.

Based on the above, I conclude that Massachusetts special education law confers upon low income parents whose children qualify for free or reduced cost lunch the right to a publicly funded IE. M.G.L. c.71B s. 3 and 603 CMR 28.04(5) do not conflict with the “basic floor” or “minimal level prescribed by the [federal] statute” (cited above) but procedurally and substantively exceed the standards, protections and services provided to disabled children in Massachusetts.

ORDER

1) Parent’s Motion For Partial Summary Judgment is GRANTED .

2) Pursuant to M.G.L. c. 71B s.3 and 603 CMR 28.04(5) Attleboro Public Schools shall fund Parent’s request for an Independent Evaluation that is equivalent to the types of assessments done by APS.

By the Hearing Officer

Dated: May 19, 2009

_________________________

Raymond Oliver


1

Carol is a pseudonym chosen by the Hearing Officer to protect the privacy of the student in publicly available documents.


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