Dracut Public Schools – BSEA # 08-5330c



<br /> Dracut Public Schools – BSEA # 08-5330c<br />

COMMONWEALTH OF MASSACHUSETTS

BUREAU OF SPECIAL EDUCATION APPEALS

In Re: Dracut Public Schools BSEA # 08-5330c

COMPLIANCE DECISION

This compliance 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 c. 71B), the state Administrative Procedure Act (MGL c. 30A), and the regulations promulgated under these statutes.

A hearing was held on June 19, 2009 in Malden, MA before William Crane, Hearing Officer. Those present for all or part of the proceedings were:

Student

Student’s Mother

Mary Elsa Abele Speech-Language Therapist and Consultant

Michele Mayer Transition Planning and Services Consultant

Pamela Ely Speech-Language Therapist and Consultant

Steven Stone Executive Director of Special Education, Dracut Public Schools Dena Steiling Educational Advocate for Student

Hillary Dunn Observer, Disability Law Center

Brianne Dobush Observer, Disability Law Center

Kerry Lewiecki Observer, Disability Law Center

Janine Solomon Attorney for Student

Pamela Coveney Attorney for Student

Catherine Lyons Attorney for Dracut Public Schools

Tami Fay Legal Intern, Bureau of Special Education Appeals

Darlene Coppola Court Report

The official record of the hearing consists of documents submitted by the Student and marked as exhibits P-1 through P-22, except P-7 which was not admitted; documents submitted by the Dracut Public Schools (hereinafter referred to as “Dracut”) and marked as exhibits S-1 through S-13; and approximately one day of recorded oral testimony and argument. As agreed by the parties, written closing arguments were due and were received on July 7, 2009, and the record closed on that date.

I. INTRODUCTION

In a March 13, 2009 BSEA Decision (hereinafter referred to as “Decision,” “BSEA Decision” or “March 13, 2009 Decision”), Dracut was ordered to provide Student with two years of compensatory transition planning and services, and (during the same time period) two years of services for older students. Dracut was further ordered to hire two consultants (Mary Elsa Abele and Michele Mayer) for the purpose of advising Dracut regarding its transition planning and services.1 This dispute presents the narrow issue of whether Dracut’s offer of compensation of $32.15 per hour to each consultant complies with the March 13, 2009 Decision and if not, what compensation should be provided.

Dracut’s proposed compensation rate of $32.15 per hour reflects approximately one-quarter of the rate that Ms. Abele and Ms. Mayer typically charge school districts for consultation. There is no colorable argument that this rate of compensation would result in Dracut’s being able to hire Ms. Abele, Ms. Mayer, or any appropriate substitute consultants, as required by the BSEA Decision; and there is no colorable argument that Dracut is required, by law or regulation, to offer this rate of compensation.

Accordingly, as explained more fully below, Dracut is determined to be out of compliance and is ordered to pay the consultants at their established consultation rates.

II. ISSUES

This compliance dispute is limited to the following issues:

1. Is Dracut Public Schools’ compensation of consultants Mary Elsa Abele and Michele Mayer at the rate of $32.15 per hour, pursuant to 114 CMR 30.00 and 114 CMR 30.04, in compliance with the BSEA’s March 13, 2009 Decision?

2. In the event that Dracut is not in compliance, at what rate must Dracut compensate Ms. Abele and Ms. Mayer in order to comply with the March 13, 2009 Decision?

III. THE MARCH 13, 2009 DECISION

The March 13, 2009 Decision by this Hearing Officer determined that Student was entitled to two additional years of special education services as compensation for Dracut’s failure to provide appropriate transition services under the IDEA and its failure to provide appropriate services for older students under the state special education regulations.

As part of the relief, the Decision required Dracut to retain Ms. Abele and Ms. Mayer as consultants for purposes of advising Dracut regarding its planning and implementation of services for Student. In the event that either Ms. Abele or Ms. Mayer were not able to provide this consultation, the Decision required Dracut to retain substitute consultants recommended by Ms. Abele or Ms. Mayer.2 The parts of the March 13, 2009 Decision relevant to the requirement that these two particular consultants (Ms. Abele and Ms. Mayer) be retained by Dracut may be summarized briefly as follows.

The March 13, 2009 Decision found that Dracut had not conducted an appropriate or complete assessment of Student’s transitional needs and had not utilized the assessments obtained by Parents which were comprehensive and appropriate (slip opinion at 27). Dracut did not have staff (and did not engage consultants) who had expertise regarding the transition needs of someone with Student’s educational profile (slip opinion at 36). As a result, Dracut staff were unable to understand sufficiently the implications of Student’s disabilities regarding post-secondary education, employment, and independent living. The failure to conduct or utilize appropriate assessments, combined with the lack of knowledgeable staff, resulted in Dracut’s not being able to propose appropriate transition planning and services (slip opinion at 27, 36). Nevertheless, Dracut staff made clear through their testimony that they believed that they understood Student’s transition needs, and they believed that they had provided appropriate transition planning and services to Student (slip opinion at 35-36).

At private expense, Parents obtained a comprehensive and appropriate assessment from Ms. Mayer and obtained comprehensive observations from Ms. Abele, together with their expert consultation regarding Student’s transition needs (slip opinion at 10-20, 27). The Decision found that Ms. Mayer and Ms. Abele have extensive consultation experience working directly with school districts, with the majority of their consultation work being initiated by school districts seeking their advice; and that they provided careful, thorough, candid, and credible expert testimony (slip opinion at 28 (fn. 38), 31 (fn. 40), 42 (fn. 60)). The Decision required Dracut to be guided by their testimony and recommendations when planning Student’s additional, compensatory services (slip opinion at 41-42).

This led to the requirement within the March 13, 2009 Decision that in order to assure that Dracut would propose appropriate planning and compensatory services, Dracut must retain Ms. Abele and Ms. Mayer as consultants (slip opinion at 42).

IV. DISCUSSION

A. Issue #1: Is Dracut’s proposed compensation rate of $32.15 per hour in compliance with the Decision of March 13, 2009?

As discussed above, the March 13, 2009 Decision required Dracut to retain Ms. Abele and Ms. Mayer as consultants for purposes of advising Dracut. Implicit within this requirement is the expectation that Dracut compensate these consultants at rates that are reasonably likely to result in actually retaining Ms. Abele and Ms. Mayer, and that Ms. Abele and Ms. Mayer be retained for sufficient hours so as to provide the requisite consultation services to Dracut.3

If the March 13, 2009 Decision were not read to require that the consultants be offered compensation at a rate that is sufficient for purposes of retaining Ms. Abele and Ms. Mayer or other appropriate consultants, Dracut could offer a rate so low as to effectively preclude Dracut’s hiring Ms. Abele and Ms. Mayer, or any other appropriate consultant who may be substituted for Ms. Abele or Ms. Mayer. This would allow Dracut to avoid its compliance responsibilities (under the March 13, 2009 Decision) to hire consultants. As discussed above, the March 13, 2009 Decision found that Dracut did not have staff (and had not engaged consultants) who have expertise regarding the transition needs of someone with Student’s educational profile (slip opinion at 36). Without appropriate consultation services, it is unlikely that Dracut would be able to propose appropriate transition services for Student.

I now consider whether Dracut has offered a reasonable rate of compensation for purposes of retaining Ms. Abele and Ms. Mayer as consultants.

Dracut offered Ms. Abele and Ms. Mayer the rate of $32.15 per hour. Ms. Abele and Ms. Mayer agreed to accept this rate for their initial task of attending an IEP Team meeting, but both consultants rejected any further Dracut consultation work at this rate. Testimony of Abele, Mayer, Stone; exhibit P-1 (affidavits of Abele and Mayer).

During the June 19, 2009 compliance hearing, Ms. Abele and Ms. Mayer each testified that at this rate, which is approximately one-quarter of their established rates for school district consultation, it would be untenable for them to continue to provide consultation services to Dracut or to any other school district. They also each testified that, at this rate, it would be highly unlikely that any other consultant would provide the consultation services required by the March 13, 2009 Decision. During the June 19, 2009 compliance hearing, the testimony of a third consultant, Ms. Ely, supported this conclusion. Testimony of Abele, Mayer, Ely; exhibit P-1 (affidavits of Abele and Mayer).4

The testimony of the three consultants during the June 19, 2009 compliance hearing was unrebutted by Dracut. Dracut’s only witness at the June 19, 2009 compliance hearing was its Executive Director of Special Education (Mr. Stone) who has significant experience in this and other school administration positions. Mr. Stone never sought to rebut the testimony of the three consultants, Abele, Mayer, and Ely. Nor did Dracut seek, in some other way, to demonstrate that it could obtain appropriate consultation at the rate of $32.15 per hour for purposes of compliance with the March 13, 2009 Decision. Testimony of Stone; exhibit S-13 (resume).

For these reasons, I find that by offering a rate of $32.15 per hour, Dracut offered compensation that provided virtually no likelihood of allowing Ms. Abele, Ms. Mayer, or any other appropriate consultant to be hired by Dracut. Accordingly, I conclude that Dracut has offered a rate that has precluded compliance with the March 13, 2009 Decision.

Dracut has not argued that it offered the rate of $32.15 per hour because it expected Ms. Abele or Ms. Mayer to accept this rate of compensation. Similarly, Dracut has not argued that it offered this rate because Dracut expected any other appropriate consultant to accept this rate. Rather, Dracut proposed the rate of $32.15 because it appears within Massachusetts Division of Health Care Finance and Policy (DHCFP) regulation 114.3 CMR 30.04. This regulation establishes certain compensation rates to be used within the public sector.

Dracut turned to DHCFP compensation rates because, in Dracut’s view, DHCFP has “sole authority over rates for educational services paid by governmental units, including public school departments.” See Dracut’s closing argument at p. 3, n. 3. Based upon the DHCFP implementing statute (M.G.L. c. 118G § 2A), Dracut has taken the position that it is required to offer a rate established pursuant to the DHCFP regulations. Id . at pp. 3, 4-5. It is not disputed that there is no DHCFP regulation which, on its face, applies to consultant services. Thus, Dracut identified a DHCFP regulation (114.3 CMR 30.04) that it deemed a “close fit in terms of an analogous public rate [internal quotation marks omitted].” Id . at p. 3. This regulation calls for a compensation rate of $32.15 per hour. Hence, Dracut has taken the position that it was not only justified in offering this rate to Ms. Abele and Ms. Mayer, but that it was required to do so pursuant to DHCFP’s statute and regulations. Id . at pp. 3-5.

I consider, at the outset, the applicability of the DHCFP statute and regulations to the instant dispute.

Dracut relies upon M.G.L. c. 118G § 2A as its sole statutory authority for the proposition that DHCFP rates must be followed by Dracut in the instant dispute. In support of this position, Dracut does not cite to any particular language or paragraph within this statute. A review of the statute itself reveals nothing that supports Dracut’s position.

Most of c. 118G § 2A pertains to rates for health care services and social services programs. The only language within c. 118G § 2A that pertains to rates applicable within the educational context reads as follows:

The secretary … shall also have sole responsibility for determining rates paid for educational assessments conducted or performed by psychologists and trained, certified educational personnel pursuant to the tenth paragraph of section 3 of chapter 71B, notwithstanding any general or special law or rule or regulation to the contrary.5

This quoted language from c. 118G § 2A pertains only to “assessments”. DHCFP regulations (114.3 CMR 30.02) define the term “assessment”, in relevant part, as follows:

A professionally sound, complete, and suitably individualized examination and assessment of a child’s need for special education and treatment services described in 603 CMR 28.00, in the context of the child’s physical, developmental, social, and educational history and current circumstances. Such an assessment is rendered by an authorized professional as defined herein and trained in the area of suspected need and generally includes a written assessment report as defined herein.

It is not disputed that Ms. Abele and Ms. Mayer are not being retained as consultants for purposes of providing such an assessment.6 Additionally, of course, the March 13, 2009 Decision makes no reference to Ms. Abele or Ms. Mayer being retained by Dracut for purposes of assessing or evaluating Student; their entire responsibility lies within their role of consultation to Dracut.

The DHCFP statute references the Massachusetts special education statute (M.G.L. c. 71B, § 3). Turning to M.G.L. c. 71B generally, and to § 3 in particular, the only reference to rates set by DHCFP pertains to independent education evaluations. In addition, the Massachusetts special education regulations promulgated under c. 71B reference DHCFP only with respect to rates for independent education evaluations. It also may be noted that even where the Massachusetts special education regulations state that only persons who “abide by” DHCFP rates may be hired for an independent evaluation, this regulation allows for the following exception: “Unique circumstances of the student may justify an individual assessment rate that is higher than that normally allowed.” M.G.L. c. 71B, § 3; 603 C.M.R. 28.04(5)(a).

I now turn to the DHCFP regulation specifically relied upon by Dracut (114.3 CMR 30.04(1)) to determine whether there is any regulatory support for Dracut’s position. This regulation applies to “TEAM evaluation services” by an “authorized social worker, nurse, or counselor.”7 Other DHCFP regulations (114.3 CMR 30.02) define the terms “TEAM evaluation” and “TEAM evaluation services” as follows:

TEAM Evaluation. An evaluation by a multidisciplinary team that consists of assessments in all areas related to the child’s suspected need for special education and services described in 603 CMR 28.00. Such assessments may include but are not limited to a medical assessment and associated diagnostic medical laboratory and radiological testing, a psychological assessment, a home assessment, and such other assessments as may be required in a child’s diagnosis. (For the purposes of 114.3 CMR 30.00, this definition excludes the educational assessment by the school department and the classroom assessment by a teacher defined in 603 CMR 28.00; rates of payment for these assessments are not the subject of 114.3 CMR 30.00.) Independent evaluation services are included under authority of 114.3 CMR 30.00. TEAM Evaluation Services. The individual services comprising TEAM Evaluation assessments. This includes services performed in independent TEAM Evaluation assessments.

On its face, the DHCFP regulation (114.3 CMR 30.04(1)) does not apply. First, Ms. Abele and Ms. Mayer do not fall into any of the three categories of social worker, nurse, or counselor.

In addition, although Ms. Abele and Ms. Mayer may need to participate in an IEP Team meeting as part of their consultation to Dracut, they are not performing a “TEAM evaluation” or “TEAM evaluation services” as those terms are defined by the DHFCP regulation quoted above.

The DHCFP regulations relied upon by Dracut appear to have been intended to provide rates for health care providers or social service providers who participate in IEP Team meetings for purposes of evaluating a student’s special education and related needs. See 114.3 CMR 30.01(1) (defining the scope of the regulations).

For these reasons, I find that there is no colorable legal argument supporting Dracut’s position that it is required to utilize a DHCFP-established rate for purposes of compensating Ms. Abele and Ms. Mayer. I also note that Dracut offered the DHCFP-established rate with the assistance of counsel.8

If Dracut’s position were correct (that, as a matter of law, it is required to utilize a DHCFP rate for purposes of compensating Ms. Abele and Ms. Mayer), one would assume that not only Dracut but all other school districts would be using DHCFP rates for purposes of hiring consultants, and one would assume that Dracut, itself, would be using this rate to hire consultants other than Ms. Abele and Ms. Mayer.

Ms. Abele, Ms. Mayer, and a third consultant (Ms. Ely) testified that currently they provide (and for many years they have provided) consultation services to many school districts in Massachusetts. They testified that during this time, they have established their own compensation rates without reference to DHCFP rates, and the school districts to whom they have consulted have routinely paid their established rates, without reference to a rate set by DHCFP. The one exception was that approximately five years ago, Ms. Mayer was requested by a school district to bill at a much lower rate—a rate that appeared to have been set by another agency (presumably DHCFP or the predecessor Rate Setting Commission)—
but the school district allowed Ms. Mayer to file a waiver request, which allowed her to bill at her established rate. The established rate of each of these three consultants is approximately four times higher than the DHCFP rate of $32.15 per hour.9

Ms. Abele, Ms. Mayer, and Ms. Ely testified prior to Mr. Stone’s testimony, and Mr. Stone was present for their testimony. During his testimony, Mr. Stone was asked how he accounted for the discrepancy between the general practice of other school districts regarding payment of consultants and his position that he was required, by statute and regulation, to pay Ms. Abele and Ms. Mayer at the DHCFP rate of $32.15. Mr. Stone responded that were he to voluntarily enter into an agreement for Ms. Abele or Ms. Mayer to consult to Dracut, he too could compensate them at their established rates. He explained, however, that because he was being required to hire Ms. Abele and Ms. Mayer pursuant to an order of the BSEA, he was required to utilize the DHCFP regulatory rate that was closest to a consultant rate, which was the rate of $32.15. Mr. Stone also explained that this case is the first time that he been required by the BSEA to engage consultants. There is no evidence that Dracut has ever utilized the rate of $32.15 for consultants. Testimony of Stone; exhibit P-22 (Dracut contracts with consultants and service providers during the past several years).

Mr. Stone’s distinction (between rates of compensation for consultants with whom Dracut voluntarily contracts and those consultants with whom Dracut is required to contract) finds no support either within the DHCFP statute or regulations, or within the Massachusetts special education statute or regulations cited above. Nor does Mr. Stone’s distinction have any support in logic. If anything, one would assume that the BSEA order would provide Dracut with greater, rather than with less, authority to utilize a rate that would allow Dracut to comply with the BSEA order to retain Ms. Abele and Ms. Mayer. Also, Dracut’s closing argument does not support Mr. Stone’s distinction. Instead of taking the position that such a distinction exists, Dracut’s closing argument argues that, as a general rule, DHCFP has “sole authority” to establish rates for public school departments. See Dracut’s closing argument at p. 3, n. 3. For these reasons, I find no support for Mr. Stone’s distinction between rates of compensation for consultants with whom Dracut voluntarily contracts and those consultants with whom Dracut is required to contract.

In sum, I find that (1) by offering the rate of $32.15 (which is approximately one-quarter of the rates established by Ms. Abele and Ms. Mayer for consultation to school districts), Dracut has not been able (and will not be able) to retain Ms. Abele, Ms. Mayer, or any other appropriate consultant to provide the consultation services required by the March 13, 2009 Decision; (2) there is no colorable legal argument that Dracut is required to offer a rate of compensation of $32.15 per hour pursuant to the DHCFP statute and regulations; and (3) Dracut has the authority to pay a consultant at the rates established by Ms. Abele and Ms. Mayer.

For these reasons, I conclude that by offering to compensate Ms. Abele and Ms. Mayer at the rate of $32.15 per hour, Dracut is not in compliance with the March 13, 2009 Decision of the BSEA.

B. Issue #2: At what rate must Dracut compensate Ms. Abele and Ms. Mayer in order to comply with the March 13, 2009 Decision?

As discussed above in the beginning of part IV A, implicit within the March 13, 2009 Decision is the requirement that Dracut compensate Ms. Abele and Ms. Mayer at rates that are reasonable and appropriate for the ultimate purpose of making it possible for Ms. Abele and Ms. Mayer to be retained as consultants to Dracut.

I now consider whether it would be sufficient simply to order Dracut to compensate Ms. Abele and Ms. Mayer at a reasonable and appropriate rate for the purpose of engaging them as consultants; or, alternatively, whether it is necessary and appropriate to order a more specific rate of compensation.

Dracut takes the position that a BSEA Hearing Officer does not have the authority to order Dracut to compensate Ms. Abele and Ms. Mayer at any particular rate. Dracut argues that a school district’s general authority to hire personnel (including consultants), and determine their compensation rates is vested exclusively within the Superintendent and, by delegation, to others within the Dracut Public Schools. In effect, Dracut seeks to establish that it has the discretion to hire personnel, following its own policies and procedures, and then to set rates of compensation for these personnel, and that this discretion applies equally with regard to Ms. Abele and Ms. Mayer. Dracut further points out correctly that, with limited exceptions not relevant here, the Massachusetts and federal special education laws do not explicitly grant authority to a BSEA Hearing Officer to order a school district to hire personnel at a particular rate of compensation.

Dracut’s argument sweeps too broadly. Undoubtedly, Dracut maintains a large degree of discretion as to whom it hires and at what rate its employees are paid. But, this discretion may be limited by Dracut’s legal obligations, including its responsibility to comply with state and federal laws, including the Massachusetts and federal special education laws.10 Compliance with special education laws includes complying with any BSEA decisions and orders that are necessary to compensate a student for failure to comply with the IDEA and MGL c. 71B.

Courts have generally recognized that an award of compensatory education is equitable relief that may consider the particular situation at the time that relief is awarded in order to remedy the wrong that has occurred. For example, when the First Circuit first recognized the appropriateness of an award of compensatory relief in an IDEA dispute, the Court stated that “compensatory education is available to remedy past deprivations.”11 The Court further stated: “In awarding compensatory education past the age of entitlement, courts have directed the parties to take into account the student’s educational status and needs at the time the relief takes effect.”12

Similarly, in the leading compensatory education case of Reid v. District of Columbia ,13 the Court made clear the importance of utilizing its flexible and broad equitable authority to fashion relief that responds to the particular facts of the dispute so that the relief will, in effect, make up for what the student had been improperly denied. The Court wrote, in relevant part, as follows:

These powers of fact-finding and remedy-crafting, the Supreme Court has explained, entail broad discretion and implicate equitable considerations.… The essence of equity jurisdiction is to do equity and to mould each decree to the necessities of the particular case. Flexibility rather than rigidity has distinguished it. … In every case … the inquiry must be fact-specific and, to accomplish IDEA’s purposes, the ultimate award must be reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place.14

Other court decisions in IDEA compensatory education (and other kinds of) disputes also reflect the breadth, flexibility, and discretion of an equitable remedy that is intended to cure the deprivation by making the student whole.15

The scope of the administrative due process hearing conducted by the IDEA Hearing Officer is “broad”.16 And, in rendering his or her decision, the Hearing Officer is obligated to employ the same equitable standards as courts when fashioning compensatory relief.17

In addition to the Hearing Officer’s equitable authority under the IDEA, the Massachusetts special education statute grants to BSEA Hearing Officers broad authority to “order such educational placement and services as he deems appropriate and consistent with this chapter to assure the child receives a free and appropriate public education in the least restrictive environment.”18

In sum, the equitable authority of a BSEA Hearing Officer is sufficiently broad so that relief can be fashioned that will correct the wrong of the particular case—that is, through an award of compensatory education, to place Student in the situation he would have occupied had Dracut complied with its obligations in the first instance. At the same time, a remedial order should be no more intrusive than reasonably necessary to address the problem.19

In determining the appropriate equitable relief, one of the considerations is the conduct of the parties.20 I consider the factors leading up to and supporting the March 13, 2009 Decision’s ordering Dracut to hire two specifically-named consultants (rather than allowing Dracut simply to obtain any needed consultation services from persons of its choice), as summarized in part III, above. Most importantly, I also consider the findings (in part IV A, above) relative to Dracut’s offering the consultants a rate of $32.15 per hour.

After careful review of the evidence and arguments put forth by Dracut in this compliance proceeding, I can find no good faith justification for Dracut’s offering the consultants the rate of $32.15 per hour, which effectively brought implementation of the March 13, 2009 Decision to a standstill. I conclude that Dracut is no longer entitled to a presumption that it will implement the March 13, 2009 Decision in good faith. In order to minimize any further delay in the implementation of this part of the March 13, 2009 Decision, I will determine the consultants’ actual compensation rates to be paid by Dracut.

As discussed above, Ms. Abele and Ms. Mayer routinely consult to public school districts. Through this consulting work, Ms. Abele and Ms. Mayer have established rates of compensation. Their rates are consistent with the rates charged by other consultants for similar work. Testimony of Abele, Mayer, Ely.21 There is no evidence that would suggest that their rates are inappropriate or unreasonable. Accordingly, I find that these rates to be appropriate for use by Dracut in this case.

For these reasons, I conclude that Dracut must compensate Ms. Abele and Ms. Mayer at their established rates for consultation to school districts, with one adjustment noted below.

V. ORDER

By offering consultants (Ms. Abele and Ms. Mayer) the compensation rate of $32.15 per hour, Dracut has failed to comply with the March 13, 2009 Decision of the BSEA.

Dracut shall compensate the consultants at their established rates for consultation to school districts. Currently, Ms. Mayer’s established rate is $125.00 per hour. Accordingly, Dracut shall pay Ms. Mayer at the rate of $125.00 per hour . Currently, Ms. Abele’s established rate is $150.00 per hour. However, during the June 19, 2009 compliance hearing, Ms. Abele testified that she is willing to charge Dracut at the rate of $125.00 hour. Accordingly, Dracut shall pay Ms. Abele at the rate of $125.00 per hour . Dracut shall compensate Ms. Abele and Ms. Mayer at these rates for their prospective consulting work pursuant to the March 13, 2009 Decision.

By the Hearing Officer,

William Crane

Dated: July 14, 2009

COMMONWEALTH OF MASSACHUSETTS

BUREAU OF SPECIAL EDUCATION APPEALS

THE BUREAU’S DECISION, INCLUDING RIGHTS OF APPEAL

Effect of the Decision

20 U.S.C. s. 1415(i)(1)(B) requires that a decision of the Bureau of Special Education Appeals be final and subject to no further agency review. Accordingly, the Bureau cannot permit motions to reconsider or to re-open a Bureau decision once it is issued. Bureau decisions are final decisions subject only to judicial review.

Except as set forth below, the final decision of the Bureau must be implemented immediately. Pursuant to M.G.L. c. 30A, s. 14(3), appeal of the decision does not operate as a stay. Rather, a party seeking to stay the decision of the Bureau must obtain such stay from the court having jurisdiction over the party’s appeal.

Under the provisions of 20 U.S.C. s. 1415(j), “unless the State or local education agency and the parents otherwise agree, the child shall remain in the then-current educational placement,” during the pendency of any judicial appeal of the Bureau decision, unless the child is seeking initial admission to a public school, in which case “with the consent of the parents, the child shall be placed in the public school program”. Therefore, where the Bureau has ordered the public school to place the child in a new placement, and the parents or guardian agree with that order, the public school shall immediately implement the placement ordered by the Bureau. School Committee of Burlington, v. Massachusetts Department of Education , 471 U.S. 359 (1985). Otherwise, a party seeking to change the child’s placement during the pendency of judicial proceedings must seek a preliminary injunction ordering such a change in placement from the court having jurisdiction over the appeal. Honig v. Doe , 484 U.S. 305 (1988); Doe v. Brookline , 722 F.2d 910 (1st Cir. 1983).

Compliance

A party contending that a Bureau of Special Education Appeals decision is not being implemented may file a motion with the Bureau contending that the decision is not being implemented and setting out the areas of non-compliance. The Hearing Officer may convene a hearing at which the scope of the inquiry shall be limited to the facts on the issue of compliance, facts of such a nature as to excuse performance, and facts bearing on a remedy. Upon a finding of non-compliance, the Hearing Officer may fashion appropriate relief, including referral of the matter to the Legal Office of the Department of Education or other office for appropriate enforcement action. 603 CMR 28.08(6)(b).

Rights of Appeal

Any party aggrieved by a decision of the Bureau of Special Education Appeals may file a complaint in the state court of competent jurisdiction or in the District Court of the United States for Massachusetts, for review of the Bureau decision. 20 U.S.C. s. 1415(i)(2).

An appeal of a Bureau decision to state superior court or to federal district court must be filed within ninety (90) days from the date of the decision. 20 U.S.C. s. 1415(i)(2)(B).

Confidentiality

In order to preserve the confidentiality of the student involved in these proceedings, when an appeal is taken to superior court or to federal district court, the parties are strongly urged to file the complaint without identifying the true name of the parents or the child, and to move that all exhibits, including the transcript of the hearing before the Bureau of Special Education Appeals, be impounded by the court. See Webster Grove School District v. Pulitzer Publishing Company , 898 F.2d 1371 (8th Cir. 1990). If the appealing party does not seek to impound the documents, the Bureau of Special Education Appeals, through the Attorney General’s Office, may move to impound the documents.

Record of the Hearing

The Bureau of Special Education Appeals will provide an electronic verbatim record of the hearing to any party, free of charge, upon receipt of a written request. Pursuant to federal law, upon receipt of a written request from any party, the Bureau of Special Education Appeals will arrange for and provide a certified written transcription of the entire proceedings by a certified court reporter, free of charge.


1

In Re: Dracut Public Schools , BSEA # 08-5330, 15 MSER 78, 52 IDELR 85 (SEA MA 2009). Dracut has appealed the Decision to federal District Court.


2

The relevant language from the BSEA Decision is as follows:

Dracut shall hire and compensate Ms. Abele and Ms. Mayer for sufficient consultation time so that they may (1) provide consultation to Dracut to assist in the development of the transition plan that complies with the instant Decision, (2) advise Dracut during the two-year period of extended eligibility regarding the need for any modifications to Dracut’s proposed transition plan, and (3) advise Dracut regarding the appropriate implementation of its transition plan. In the event that Ms. Abele or Ms. Mayer is not able to provide this consultation, Dracut shall retain substitute consultants who are recommended by Ms. Abele or Ms. Mayer.

In Re: Dracut Public Schools , slip opinion at page 42 (footnote omitted).


3

In her testimony during the compliance hearing on June 19, 2009, Ms. Abele estimated that the amount of her consultation time that would be needed for this purpose would be three or four hours per month for the first three or four months and then two or three hours per month thereafter. Ms. Mayer estimated her consultation to be three to five hours per month for the first two or three months, and one to two hours per month thereafter. The March 13, 2009 Decision called for two years of additional transition services, so it may be assumed that the consultants’ time would continue to be provided until the end of this two-year period. Dracut has provided no evidence or argument that this amount of consultation time is inappropriate or unreasonable.


4

Ms. Abele currently is consulting to the following school districts: Hudson Public Schools, Wellesley Public Schools, Brookline Public Schools, Marshfield Public Schools, Duxbury Public Schools, and Winchester Public Schools; and she has recently consulted to Lexington Public Schools, Chelsea Public Schools, Needham Public Schools, Arlington Public Schools, and Hanover Public Schools. Ms. Abele testified that each school district for whom she is currently consulting is paying her at her established rate of $150.00 per hour. Her previous rate was $140.00 per hour, and occasionally she has consulted at the rate of $125.00 hour when working under a grant with limited funds or for long-time clients. Testimony of Abele; exhibit P-1 (affidavit of Abele). Ms. Mayer has consulted to at least ten school districts during the past year. Typically, this consultation is part of an evaluation, for which she charges a flat rate of $1,800.00 to $2,000.00 for approximately 15 hours of her time, or an equivalent of $120.00 to $133.00 per hour. When she consults separately from an evaluation, her rate is $125.00 per hour. Testimony of Mayer; exhibit P-1 (affidavit of Mayer).


5

M.G.L. c. 118G § 2A reads, in its entirety, as follows:

Rates for health care services by governmental units; rates for supplies, care and rehabilitative services and accommodations; rates for educational assessments; rates for social service programs

The secretary shall establish rates of payment for health care services. The secretary shall have the sole responsibility for establishing rates to be paid to providers for health care services by governmental units, including the division of industrial accidents. The rates shall be adequate to meet the costs incurred by efficiently and economically operated facilities providing care and services in conformity with applicable state and federal laws and regulations and quality and safety standards and which are within the financial capacity of the commonwealth. The secretary shall have the sole responsibility for establishing fair and adequate charges to be used by state institutions for general health supplies, care and rehabilitative services and accommodations, which charges shall be based on the actual costs of the state institution reasonably related, in the circumstances of each institution, to the efficient production of the services in the institution and shall also have sole responsibility for determining rates paid for educational assessments conducted or performed by psychologists and trained, certified educational personnel pursuant to the tenth paragraph of section 3 of chapter 71B, notwithstanding any general or special law or rule or regulation to the contrary.

The secretary shall have the sole responsibility for establishing rates of payment for social service programs which are reasonable and adequate to meet the costs which are incurred by efficiently and economically operated social service program providers in providing social service programs in conformity with federal and state law, regulations, and quality and safety standards. When establishing rates of payment for social service programs, the secretary shall adjust rates to take into account factors, including, but not limited to: (a) the reasonable cost to social service program providers of any existing or new governmental mandate that has been enacted, promulgated or imposed by any governmental unit or federal governmental authority; (b) a cost adjustment factor to reflect changes in reasonable costs of goods and services of social service programs including those attributed to inflation; and (c) geographic differences in wages, benefits, housing and real estate costs in each metropolitan statistical area of the commonwealth, and in any city or town therein where such costs are substantially higher than the average cost within that area as a whole. The secretary shall not consider any of the resources specified in section 12 when establishing, reviewing or approving rates of payment for social service programs.


6

Ms. Abele’s unrebutted testimony was that she has not within the past several years and would not in the instant dispute, be performing an assessment or evaluation. Similarly, Ms. Mayer’s unrebutted testimony was that she previously assessed/evaluated Student and would now only be providing consultation. Dracut does not take the position that Ms. Abele’s or Ms. Mayer’s consultation services include an assessment or evaluation.


7

114.3 C.M.R. 30.04(1) reads, in relevant part, as follows:

Fee-for-Service Reimbursement. Specific services performed as part of a TEAM Evaluation are reimbursed on a fee-for-service basis. The allowable fees for the services performed are those set forth in regulations at 114.3 CMR pertaining to such services. A listing of many of the allowable fees from other regulations that may apply to TEAM Evaluation services is presented in 114.3 CMR 30.04(1). Allowable fees from the regulations cited apply to all providers eligible under 114.3 CMR 30.00, except in cases where such providers and services are governed by other Division regulations (such as Community Health Centers and Mental Health Centers).

For certain TEAM Evaluation services, no other Division regulation contains an allowable fee for that service. This includes home assessment services, participation in TEAM meetings, educational assessments conducted by certified educational personnel, and diagnostic observation by psychologists. Allowable fees for these services are as follows: …

$32.15 Participation in TEAM Meeting by authorized social worker, nurse, or counselor


8

Dracut had retained its current counsel when it offered the rate of 32.15 per hour. In fact, Dracut’s counsel actually made the offer of $32.15 per hour to Ms. Abele and Ms. Mayer. Testimony of Stone.


9

See footnote 4, above.


10

See, e.g., Mr. I. v. Maine School Administrative District No. 55, 480 F.3d 1 , 11 (1 st Cir. 2007) (state may “ calibrate its own educational standards, provided it does not set them below the minimum level prescribed by the [IDEA]”).


11

Pihl v. Mass. Dept. of Ed. , 9 F.3d 184, 188 (1 st Cir. 1993).


12

Id . at n. 8 (1 st Cir. 1993) (citations omitted).


13

Reid ex rel. Reid v. District of Columbia , 401 F.3d 516 (D.C. Cir. 2005).


14

Reid at 522-524 (D.C. Cir. 2005) (citations and internal quotations omitted).


15

Swann v. Charlotte-Mecklenburg Bd. of Ed . , 402 U.S. 1, 15, 91 S.Ct. 1267 ( 1971) (in a non-IDEA education dispute, the Court explained: “ If school authorities fail in their affirmative obligations under these holdings, judicial authority may be invoked. Once a right and a violation have been shown, the scope of a district court’s equitable powers to remedy past wrongs is broad, for breadth and flexibility are inherent in equitable remedies.”); Draper v. Atlanta Independent School System , 518 F.3d 1275, 1289 (11 th Cir. 2008) (adopting the Reid analysis); C.G. ex rel. A.S. v. Five Town Community School Dist. , 513 F.3d 279 , 290 (1 st Cir. 2008) (“compensatory education is . . . a discretionary remedy for nonfeasance or misfeasance in connection with a school system’s obligations under the IDEA” ); Board of Educ. of Fayette County, Ky. v. L.M . , 478 F.3d 307, 316 (6 th Cir. 2007) (adopting the Reid analysis); G. ex rel. RG v. Fort Bragg Dependent Sch., 343 F.3d 295, 309 (4th Cir. 2003) (“Compensatory education involves discretionary, prospective, injunctive relief crafted by a court to remedy what might be termed an educational deficit created by an educational agency’s failure over a given period of time to provide a FAPE to a student.”); Lester H. v. Gilhool, 916 F.2d 865 (3rd Cir. 1990), cert. denied 499 U.S. 923, 111 S.Ct. 317 (1991) (compensatory education is intended to be “an appropriate remedy to cure the deprivation of a child’s right to a free appropriate public education”); Miener v. State of Missouri , 800 F.2d 749 (8th Cir. 1986) (compensatory education intended to cure the deprivation of a handicapped child’s statutory rights); Commonwealth v. Adams, 416 Mass. 558, 566, 624 N.E.2d 102 (1993) (in a non-education dispute, the court explained: “The law leaves to the sound discretion of the trial judge the issuance and scope of equitable relief”).


16

Rose et al. v. Yeaw , 214 F.3d 206, 210 (1 st Cir. 2000) (“scope of the due process hearing is broad”) ; Frazier v. Fairhaven School Committee , 122 F.Supp.2d 104, 108 ( D.Mass. 2000) ( “ administrative process … includes a hearing that is broad in scope”) aff’d 276 F.3d 52 (1 st Cir. 2002).


17

See, e.g., Reid at 518, 524, 526 (criticizing the “ hearing officer’s mechanical calculation” of the compensatory award; also indicating that the “fact-specific exercise of discretion” in determining the appropriate compensatory award may be done by the hearing officer or district court; and remanding the case to the district court but also indicating that the district court may further remand the case to the hearing officer for determination of the appropriate compensatory award); B.B. ex rel. Brunes v. Perry Tp. School Corp . , 2008 WL 2745094, *12 ( S.D.Ind. 2008) (“IHO [Impartial Hearing Officer] has the broad authority to award remedial relief that is necessary to address violations of the IDEIA”); Ivan P. v. Westport Bd. of Educ . , 865 F.Supp. 74, 84 ( D.Conn. 1994) (“ logical to infer that a hearing officer should have the same equitable discretion as the district court”); S-1 v. Spangler, 650 F.Supp. 1427, 1431 (M.D.N.C.1986) (“seems incongruous that Congress intended the reviewing court to maintain greater authority to order relief than the hearing officer, especially in light of the hearing officer’s expertise in the area”), vacated as moot, 832 F.2d 294 (4th Cir.1987); Cocores v. Portsmouth, N.H. Sch. Dist., 779 F.Supp. 203, 206 (D.N.H.1991) (“Given the importance the IDEA places on protections afforded by the administrative process, this court finds and rules that the hearing officer’s ability to award relief must be coextensive with that of the court. To find otherwise would make the heart of the [Act’s] administrative machinery, its impartial due process hearing less than complete.”), quoting Manecke v. School Bd. of Pinellas County, 762 F.2d 912, 919 (11th Cir.1985), cert. denied, 474 U.S. 1062, 106 S.Ct. 809, 88 L.Ed.2d 784 (1986)) (footnote and internal quotations omitted). See also Forest Grove Sch. Dist. v. T.A ., 2009 WL 1738644, *8, n.11, and *10 (2009) ( in an IDEA dispute, the authority of a Hearing Officer and the authority of a Court are concurrent with respect to the equitable remedy of reimbursement) .


18

M.G.L. c. 71B, § 3.


19

See, e.g., Perez v. Boston Hous. Auth., 379 Mass. 703, 730, 400 N.E.2d 1231 (1980) (“judicial remedies … should be no more intrusive than it ought reasonably be to ensure the accomplishment of the legally justified result”).


20

See, e.g., Reid ex rel. Reid v. District of Columbia , 401 F.3d 516, 524 (D.C. Cir. 2005) (“ courts have recognized that in setting the award, equity may sometimes require consideration of the parties’ conduct”); Judge Rotenberg Educational Center, Inc. v. Commissioner of the Dept. of Mental Retardation , 424 Mass. 430, 466, 677 N.E.2d (1997) (“we give great deference to a State agency’s exercise of its discretionary functions. This deference, however, does not extend to unreasonable conduct or where an agency is found to be acting contrary to its legal duty.”) (internal citations omitted).


21

See footnote 4, above.


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