COMMONWEALTH OF MASSACHUSETTS
Bureau of Special Education Appeals
In Re: Ellora1 and South Hadley Public Schools
BSEA #03-1385
DECISION
This decision is issued pursuant to M.G.L. c. 71B and 30A, 20 U.S.C. § 1401 et seq ., 29 U.S.C. § 794, and the regulations promulgated thereunder. A hearing was held in the above-entitled matter on April 28 and May 1, 2003, at the offices of Catuougno Court Reporting Services in Springfield, MA. Those present for all or part of the proceeding were:
Parent
James Loomis Psychologist
Patricia Mercaitis Speech-Language Pathologist
Pamela Malchik
Marianne Moore2 Center for Autism and Related Disorders
Patricia Fitzgerald Grade 4 Teacher, South Hadley Public Schools
Kathleen Benedict Grade 5 Teacher, South Hadley Public Schools
Christine Abrahamson School Psychologist, South Hadley Public Schools
Melodie Goodwin Principal, Middle School, South Hadley Public Schools
Allison Rebello Grade 5, Math Science Teacher, South Hadley Public Schools
Cynthia Shepard Speech-Language Pathologist, South Hadley Public Schools
Charles Hopkins Special Education Director, South Hadley Public Schools
Edward Ryan Attorney for South Hadley Public Schools
Matthew Engel Attorney for Parent
Lindsay Byrne BSEA Hearing Officer
The official record of the hearing consists of documents submitted by the Parent marked P-1 through 17 and P-20 through 22; documents submitted by the School marked S-1 through S-8 (p. 1-357); and approximately 15 hours of recorded oral testimony. Both parties submitted written closing arguments by May 30, 2003; and the record closed on that date. After the hearing request was filed by the parent on September 18, 2002, the parties participated in multiple prehearing conferences, single issue evidentiary hearings and telephone conferences, some of which resulted in substantive and/or procedural rulings. None of the previous rulings is necessary or pertinent to the resolution of the remaining issues, thus they are not discussed herein.
I. ISSUES3
a) Whether the School’s February, 2002, finding that the Student is not eligible to receive special education services is consistent with 603 CMR 28.05 (2) and 34 CFR 300.7?
b) Whether the School’s denial of the Parent’s January, 2003 request for an Independent Evaluation in the area of speech and language is consistent with 603 CMR 28.04 (5)?
c) Whether the School’s denial of the Parent’s February, 2003, request for an Independent Evaluation in the area of “education” is consistent with 603 CMR 28.04 (5)?
II. SUMMARY OF THE EVIDENCE
This matter has a long and unusually contentious procedural history. There is very little agreement between the parties on any matter pertaining to the Student, to her education, or to communication between the parties. Nonetheless the evidentiary record established the following:
1. Ellora is an eleven year old student with a diagnosis of autism. She has recently completed the fifth grade at the middle school in South Hadley, MA.
2. The Student’s educational services are outlined in her last agreed upon IEP. That IEP, developed at a Team meeting held on June 12, 2000, covered the Student’s 2000-2001 third grade year. It called for Ellora’s full time placement in a regular third grade class with special education “as needed” to address pragmatic language concerns and school adjustment counseling up to sixty minutes per week.
3. The 2000-2001 IEP remained in effect throughout the 2001-2002 school year during which Ellora completed 4 th grade. Ellora’s fourth grade teacher, Patricia Fitzgerald, testified that Ellora was fully integrated into the regular class of twenty five students. Academically she functioned at or above grade level in all areas with the same type of individualized assistance that was given to all students as needed such as: brainstorming, visual aids, graphic organizers, predictions, etc. Ellora sat in the front of the class and always asked for clarification or assistance when appropriate and necessary. Ellora had an excellent fund of general knowledge, a good memory, good problem solving, abilities, and excellent reading skills. (Fitzgerald)
Ms. Fitzgerald testified that she addressed social skills within the classroom using the formal “second step” program as well as informal reinforcement and modeling. Ms. Fitzgerald testified that Ellora had age appropriate inferential and non-verbal communication skills, followed social rules without prompting, made eye contact, maintained appropriate personal space boundaries, engaged in reciprocal conversations, had friends, had a positive and cooperative attitude, had good motivation, and was in general indistinguishable from the other students in the class. (Fitzgerald; S-2, P-52; P-22; S-5, p. 272, 3) In addition to the classroom social skills program, Ellora attended a friendship group with five typical students from the classroom. Ms. Fitzgerald never heard any reports of difficulty with that regular education service. (See S-3, p. 74; S-5, 267-271)
Ms. Fitzgerald stated that Ellora did not require any specialized instruction in any academic area during her fourth grade year. Ellora functioned within grade level expectations academically, behaviorally and socially throughout the 2001-2002 school year. Therefore, Ms. Fitzgerald concluded that Ellora was making effective progress in the mainstream and was not eligible for special education. I found Ms. Fitzgerald to be a thoughtful, careful witness and credit her testimony in full.
4. The Team convened in February, 2002, at the Parent’s request. The Team considered the results of a psychological assessment, a speech-language evaluation, academic achievement testing, standardized test scores, and a classroom functioning observation by Ellora’s then current teacher, Ms. Fitzgerald.
The psychological assessment was conducted by school psychologist Christine Abrahamson in February, 2002. She found Ellora to have average to above average intellectual abilities and learning functioning consistent with that ability level. Although a relative weakness in Ellora’s working auditory memory along with a slow, thorough working style could require some accommodations in the time/volume/or reauditorization of work, Dr. Abrahamson found no significant deficits requiring special education. Further she noted that Ellora demonstrated appropriate social skills and self-awareness. (Abrahamson; S-2, p. 23-26)
The speech-language evaluation, conducted by Cynthia Shepard on February 1, 2002, determined Ellora’s receptive and expressive language skills to fall in the average range. Ms. Shepard noted in particular that Ellora demonstrated appropriate pragmatic language skills. Her recommendations for additional time for formulation of responses, reauditorization, chunking of information and visual support are consistent with those of Dr. Abrahamson. (S-2, p.18-20)
Academic achievement testing administered by special education teacher Loanne Popp, elicited overall test scores in the average range for her age and grade. These scores were consistent with those achieved on previous group standardized tests. None of the results indicated a need for specialized academic instruction. (S-2, p. 10-15) Ms. Fitzgerald testified that the test scores were consistent with Ellora’s actual classroom functioning. (Fitzgerald)
The school based team members conclude that although Ellora had a diagnostic history of autism spectrum disorder, she was making effective progress in all areas in the regular education program and did not require specialized instruction in any area. Therefore the Team determined that Ellora was not eligible for special education. (S-3, p.45-49) The School proposed addressing the remaining unmet “theory of mind” goals from her last accepted IEP through a 504 plan. (Hopkins; S-3, p. 45-49. p. 62-72)
5. The Parent rejected the Finding of Ineligibility and the Proposed 504 plan. (Parent; Hopkins; S-3, p.51) The Parent testified that it was her impression that by February, 2002, school evaluation team members had predetermined that Ellora would not be eligible for special education services. The Parent acknowledged that Ellora’s “deficits” were not “large”, but stated they existed in critically important areas that would negatively affect Ellora’s adult functioning. She testified that at the time of the Team meeting in 4 th grade Ellora was a good concrete learner and had a great factual memory, but needed direct, sequential instruction and practice to acquire social skills and language. The Parent also noted that some of the stereotypical behaviors that Ellora had exhibited when younger “resurfaced mildly” when she was tired or anxious. The Parent contended that in February, 2002, Ellora continued to need special education in the classroom and regular discrete trial training to address her remaining “deficits” and the unmet IEP goals. (Parent)
6. In March, 2002, Marianne Moore, a clinical supervisor with the Center for Autism and Related Disorders in California with a bachelor’s degree in economics, wrote a letter at the request of the Parent concerning Ellora. Based solely on information supplied to her by the Parent, Ms. Moore recommended that Ellora receive five hours weekly of one-to-one behavioral intervention in applied behavioral analysis, discrete trial teaching and theory of mind concepts for the remainder of her fourth grade year. At the time she wrote this letter Ms. Moore had had no contact with Ellora or with the South Hadley Public Schools since June, 2000. (Moore; P-8) Based on her educational background as well as the quality and timing of the information she relied upon, I do not assign Ms. Moore’s recommendation significant weight.
7. After the Team meeting the Parent requested an Independent Evaluation in the area of Psychology. The School agreed to fund it. The first evaluator selected by the parent, Dr. Dyer, was unable to complete the evaluation. The second evaluator selected by the parent, Dr. Blum, conducted an evaluation in July, 2002. (Hopkins, Parent, S-3, p. 86)
Dr. Karen Blum observed that Ellora worked cooperatively, was motivated, positive and focused throughout three days of testing. The formal testing conducted by Dr. Blum revealed Ellora to have overall cognitive potential in the average range with all measured discrete academic and executive functioning also falling within the average range. Although Dr. Blum identified relative weakness or “vulnerabilities” in graphomotor speed, visual sequential reasoning, working auditory memory and relative strengths in crystallized knowledge, abstract verbal reasoning and spatial reasoning, none of the measures fell outside the average range. Dr. Blum did not identify any area of deficit or disability which would require special education. Although Dr. Blum did make extensive recommendations for environmental and instructional strategies tailored to Ellora’s learning style, there is no evidence in the record that Dr. Blum knew of the environment and or instruction Ellora had been or would be receiving through the South Hadley Public Schools. Furthermore, there is no evidence in this record that the strategies recommended by Dr. Blum have not been or cannot be employed effectively by regular educators in the regular education setting. (S-2, p. 29-47)
8. On September 11, 2002, Ms. Moore of the Center for Autism and Related Disorder wrote a letter at the request of the parent. Apparently based solely on her review of Dr. Blum’s evaluation report Ms. Moore recommended that Ellora receive 20 hours per month of behavioral intervention. She further recommended that CARD provide four hours per month of classroom observation and 2 hours per month of consultation to the teachers. (S-3, p. 118) As this recommendation misconstrues the plain language of Dr. Blum’s report, and is otherwise untrustworthy, I give it no weight. (See also S-3, p. 136-140)
9. During the Fall, 2002, several attempts were made to reconvene the Team to consider Dr. Blum’s evaluation. Due to conflicting schedules, ongoing due process proceedings and poor communication, a Team was not held until November 22, 2002. (S-3, p. 101, 108, 109, 111, 114, 116, 120, 157, 161; Hopkins) The Parent did not attend. Dr. Blum was invited by the School, but did not attend. The director of special education, Dr. Hopkins, attended along with two special education teachers, Ellora’s past 4 th grade and current 5 th grade regular classroom teachers, the school pyschologist, the guidance counselor, the school adjustment counselor and a middle school administrator. The Team reviewed Dr. Blum’s report and Ellora’s current school functioning and determined that she was making effective progress in regular education and therefore was receiving a free, appropriate public education. (Hopkins, S-3, p. 157-71; Benedict, Fitzgerald, Abrahamson)
10. Dr. Patricia Mercaitis conducted a comprehensive speech and language evaluation in the Fall, 2002, which included a review of Ellora’s records, observations of Ellora at school, a parent interview and administration of the following standardized tests: The Listening Test, the Test of Language Development, Test of Word Finding, Mayo Clinic Motor Speech. Dr. Mercaitis found Ellora to have strengths in verbal reasoning, critical thinking and problem solving. On standardized testing Ellora excelled in vocabulary and word finding, while she performed somewhat below average expectations on tasks involving auditory memory, and sematic absurdities. Extended testing in syntax yielded results solidly in the average range. (P-16, P-17) In the classroom Ellora responded accurately and appropriately to teacher questions.
Dr. Mercaitis found Ellora’s overall language functioning to be in the average range, but that her weakness in listening comprehension activities required accomodations in her educational program. Specifically Dr. Mercaitis suggested that Ellora was eligible for special education and that her IEP should include: speech and language therapy directed at “deficits in verbal and written syntax and sematics” and self-advocacy. Dr. Mercaitis also recommended that Ellora participate in a social skills communication group. Finally Dr. Mercaitis recommended additional language testing in the area of receptive and expressive syntax. (Mercaitis; P-16) Although Dr. Mercaitis’ findings are substantially similar to earlier speech-language evaluation results I give her recommendations less weight as she had no testing or observational foundation for her recommendations in the areas of social skills or written communication. Also there was no internal support in her evaluation report for her conclusion that Ellora is eligible for special education as there was no finding that Ellora either had a disability or that she was not progressing effectively in the classroom.
11. The Team reconvened on January 16, 2003, to reconsider the psychological report prepared by Dr. Blum and to consider for the first time the independent speech and language evaluation conducted by Dr. Mercaites. Both Dr. Blum and Dr. Mercaitis attended the Team meeting. (S-3, p. 174, Hopkins)
Dr. Abrahamson, the school psychologist, testfied that the standardized test results obtained by Dr. Blum were generally consistent with her own testing results and the Team’s knowledge of Ellora’s functioning. Dr. Abrahamson did disagree, however, with Dr. Blum’s interpretation of the results. Dr. Abrahamson pointed out that areas of “relative weakness” were reported by Dr. Blum to be “deficits” when the score actually fell within the average range, consistent with Ellora’s cognitive potential and not an indication of a disability. In addition, Dr.
Abrahamson was concerned that Dr. Blum did not address the discrepency between Ellora’s reported functioning at home and at school. For example on the Connors rating scales the teacher marked Ellora’s behavior as falling in the average range across the board while the parent’s responses placed Ellora in the category of marked Atttention Deficit Hyperactivity Disorder. (Abrahamson) Nevertheless, Dr. Abrahamson testifed, the accomodations and strategies suggested by Dr. Blum: direct, concrete sequential instruction, teaching organizational strategies, untimed tests, visual aids and social/emotional support; are appropriate and are provided in the context of the regular classroom. (Abrahamson)
Kathleen Benedict is Ellora’s 5 th grade teacher, responsible for language arts, reading and social studies instruction. She testified that she told the January 16, 2003, Team that Ellora was making appropriate and effective progress in the regular 5 th grade curriculum and classroom. There were no skill or ability weaknesses that impeded Ellora’s average performance in all classroom activities and expectations. According to Ms. Benedict Ellora met all academic demands at grade level as evidenced in test scores, classwork, homework and participation. Ellora also meets age appropriate social demands. She appropriately makes eye contact, maintains her personal space, interprets body language, maintains vocal tone and volume, maintains conversational topics, seeks clarification and assistance, engages in cooperative academic work, demonstrates concern for others, follows and contributes to classroom directions and discussions. Ms. Benedict stated that Ellora is sometimes anxious when returning to class after an absence, but that the anxiety is not out of the range of normal in intensity or duration. Ms. Benedict was aware, when Ellora started 5 th grade, that she had a 504 plan calling for her participation in a social skills/friendship group. Other than that Ms. Benedict was unaware of any special educational needs, and made no special accommodations for Ellora. As part of the regular program adaptations to Ellora’s individual style Ms. Benedict provided: graphic organizers, visual aids, opportunities for repetition and clarification questions, and reduced auditory distractions. Ms. Benedict testified that Ellora was not treated differently than any other member of the class and did not perform out of the norm of the class in any way. (Benedict) I found Ms. Benedict to be a thorough and sensitive witness and credit her testimony in full.
12. The January 16, 2003, Team found that Ellora was receiving a free, appropriate public education but agreed to reconvene the Team to consider additional information from Ellora’s regular 5 th grade math/science teacher. (S-3, p. 187-203; Hopkins)
13. On January 20, 2003, the Parent requested that South Hadley fund additional testing by Dr. Mercaitis, consistent with the recommendation in her January 9, 2003, report. On January 24, the School notified the Bureau of Special Education Appeals and the Parent of its decision to decline the Parent’s request for further Independent Evaluation in the area of speech and language. The parties agreed to address the issue of the Independent Evaluation at the hearing on the merits. (Administrative Record)
14. On February 3, 2003, the Parent notified the School that she disagreed with the “assessments” of Ellora’s classroom functioning presented by Ellora’s fifth grade classroom teachers Ms. Benedict and Ms. Robella at the Team meetings. The Parent requested an Independent Educational Evaluation in the area of Ellora’s classroom functioning.4 (S-3, p. 217) On February 5, 2003, the School authorized an independent evaluation in the area of education to be completed by a certified teacher of special needs. (S-3, p. 219)
On February 19, 2003, the School received a letter from the Parent purporting to challenge the School’s authorization of an independent educational evaluation. The Parent clarified that she sought an “integrated” evaluation by an individual with experience in both special education and high functioning autism to conduct a multifaceted review of recent testing, prior IEPs and progress reports, personal interviews and student observations across settings and to prepare a report of Ellora’s “individual educational and developmental potential.” Because of the comprehensive nature of the report she sought, the Parent requested that more than four hours be allotted for the evaluation. She identified Dr. James Loomis, a psychologist, but not a special needs teacher, as her preferred choice of independent evaluator. (P-11, 23; S-3, p. 224)
On February 21, 2003, the School denied the Parent’s request for an extended educational evaluation because it was beyond the scope of the original request and the requested elements had been addressed in previously authorized independent evaluations. (S-3, p. 227, 228) On the same date the School requested a hearing pursuant to 603 CMR 28.04 on its denial. The parties agreed to address the issue of the independent educational evaluation at the substantive hearing.
14. Dr. Loomis conducted the comprehensive evaluation sought by the Parent at private expense during April, 2003. Concerning Ellora’s classroom functioning Dr. Loomis observed that she participated fully in classroom activities and had appropriate, reciprocal social communication and behavior, consistent with prior reports. Dr. Loomis testified that Ellora clearly enjoyed activities and conversations that were concrete and fact based and was less adept when tasks involved inferential thinking. While he acknowledged that some children even without a diagnostic history of pervasive developmental disorder will not have acquired fluid inferential thinking by the fifth grade, Dr. Loomis stated that Ellora remains atypical, in that she requires direct instruction and support to accommodate abstract processing difficulties. (Loomis; P-23)
Findings and Conclusions
After careful consideration of the entire evidentiary record, and the argument of counsel for both parties, it is my determination that South Hadley was correct in its determination February, 2002, that the Student is not eligible to receive special education services.5
1. A two pronged analysis is used to determine whether a student is eligible to receive special education. M.G.L. c. 71B, 1; 603 C.M.R. 28. 02 (9) The first prong of the analysis involves determining whether the student has a disability that is recognized by the law. Here there is no dispute that Ellora has autism, a recognized disability. 603 CMR 28.02 (7) (a). The second prong of the analysis requires a showing that because of the identified disability, the student is unable to progress effectively in regular education and requires special education to successfully develop his or her individual educational potential. To progress effectively in regular education means to make documented growth in the acquisition of knowledge and skills, including social/emotional development, within the general education program, with or without accommodations, according to chronological age and developmental expectations, the individual educational potential of the child, and the learning standards set forth in the Massachusetts Curriculum Frameworks and the curriculum of the district. 603 CMR 28.02 (18) The preponderance of the credible evidence in this hearing establishes that, in February, 2002, and continuing into current times, Ellora had made effective progress in all aspects of her regular education program. Therefore she is not eligible to receive special education services.
First, I note that in determining whether the Team’s initial determination that Ellora was not eligible for special education was correct I must look at the information available to it in February, 2002. That information, classroom functioning reports, standardized achievement testing, speech and language evaluation tools, and parental and teacher observations, was consistent. Ellora was, at that time, functioning appropriately and on grade level without special education supports in her fourth grade classroom. No areas of disability requiring intervention or remediation were identified by school based assessors. (See par. 3, 4, 5) The Parent’s contention that Ellora needed special education intervention in the form of discrete trial training targeted to social communication and skills was not supported by any objective information available to the February, 2002, Team, nor by any credible information presented at the hearing. Therefore I find that all information available to the Team in February, 2002, supported the Team’s determination that Ellora was not, at that time, eligible for special education.
The question remains, however, whether some later developed or more finely tuned expert evaluation could shed some light on the Parent’s on-going concerns about Ellora’s educational functioning. Since the Parent rejected the Team’s determination of no eligibility, and secured multiple evaluations over the course of the subsequent fifteen months, the Team had an ongoing responsibility to consider the new information in light of Ellora’s then current functioning. The evidence of the parties’ ongoing communication, however strained, indicates South Hadley’s commitment to procedural compliance with this responsibility.
As a substantive matter, the opinions, observations and assessments of the school-based providers over time consistently demonstrate a commitment to considering new information while maintaining a careful professional view of the Student they saw daily in school. The testimony of Ellora’s teachers, Ms. Benedict and Ms. Fitzgerald, and the school psychologist, Dr. Abrahamson, established that Ellora has been able to, and in fact does, participate fully in all aspects of the regular education program with only the type and frequency of supports that are provided routinely to students without identified disabilities. Ellora has demonstrated the acquisition of new academic skills consistent with grade level expectations over the course of her experiences in South Hadley. In addition Ellora has demonstrated age appropriate social-emotional skills in the school setting. According to her teachers Ellora exhibits no area of weakness that prevents her from progressing in standard curricular areas at the standard rate of grade expectation. Nor does Ellora have any area of behavioral or social weakness that requires specialized assistance in the school setting. I credit this testimony in full both because I found the witnesses to be particularly thoughtful and knowledgeable; and because there is no credible evidence to the contrary in this record.
Standardized testing administered by the school, by Dr. Blum, the independent psychologist, and by Patricia Mercaitis, the independent speech-language pathologist, yielded consistent results. Although areas of “relative weakness” were identified from time to time, standard measures of performance over time showed Ellora to be a student functioning overall within expected age and grade norms. The constancy of these results over time and across settings establishes a pattern of progress which buttresses the testimony of Ellora’s teachers.
The testimony of the Parent’s witnesses, while professional and helpful, did not persuade me that Ellora met the eligibility criteria for receipt of special education services.
First I note that neither Dr. Mercaitis nor Dr. Loomis knew Ellora when the Team at issue convened in February, 2002, to consider her eligibility for special education. There is nothing in their post-Team findings that is inconsistent with the information the Team had before it in February, 2002. Indeed there is nothing in their findings about Ellora’s current functioning that would reasonably prompt a Team to reconsider its previous denial of eligibility. Neither witness made, or could make, any reasonable conclusion that Ellora was unable to progress effectively in the regular fourth or fifth grade curriculum. Similarly, Dr. Blum’s evaluation while interesting and informative, did not challenge the finding of the February, 2002, Team, or provide any critical, new information which would reasonably prompt that Team to reconsider its previous denial of eligibility.
Therefore, I find that South Hadley has established by a clear preponderance of the credible evidence in the record that Ellora has made and is making effective progress in regular education commensurate with age and grade level expectations and her own educational potential. I further find that the Parent has failed to establish any reasonable basis, consistent with M.G.L. c. 71B, 603 C.M.R 28.02 (9) and 20 U.S.C. § 1401 (a)(1)(A)(i) for providing special education services to this Student. It is my determination that South Hadley was correct in February, 2002, when it concluded that this Student was not eligible for services under M.G.L. c. 71B and 20 U.S.C. § 1401 et seq.
2. Turning to the question whether South Hadley’s decision to deny the Parent’s January, 2003 request for additional independent speech-language testing conforms to the requirements of 603 CMR 28.0 (5)(d) I am constrained to find that it does not. At issue here is whether the speech-language evaluation conducted by the School in February, 2002, was comprehensive and appropriate. A comparison of that evaluation with the evaluation conducted by the independent evaluator, Patricia Mercaitis, shows that the latter was substantially more comprehensive, though not necessarily any more appropriate. The results of the two evaluations were similar, finding some areas of language weakness amid overall age-level language functioning. These results, particularly when combined with the observations of the two psychologists and three teachers who contributed to the Team decision, do not support the additional testing suggested by Dr. Mercaitis. (P-16) The “excellent” results Ellora obtained on the syntactic measures administered in the second independent evaluation provide hindsight confirmation of the comprehensiveness and appropriateness of the initial evaluations. (P-17) Nonetheless, the reasons given by South Hadley when it declined to fund the additional independent speech-language evaluation are not ones the regulation permits such denials to be based upon. (S-3, p. 208- 209) Pursuant to 603 CMR 28.04 (5) (d) the school may decline to fund an independent evaluation upon a showing that its own evaluation is comprehensive and appropriate. Here, South Hadley told the Parent it declined to fund her request because “the rush to ‘label and disable’ may well have an adverse effect on this capable child” and “why were its potential consequences not identified as part of her original evaluation?” (S-3, p. 209) Moreover, South Hadley did not offer any testimony or argument at the hearing bearing on the comprehensiveness and appropriateness of its original speech-language evaluation in the area of expressive and receptive syntax.
While the further testing was clearly of limited practical value, and yielded results consistent with the observation of all of Ellora’s previous teachers and speech and language therapists, it remains for the school to have articulated in a reasonable and supportable manner legitimate educational reasons for denying a parental request for an IEE. 603 CMR 28.04 (5). It did not do so at this hearing. Therefore the Parent is entitled to reimbursement of any out-of-pocket expenses associated with completion of the additional speech-language testing performed by Dr. Mercaitis.
3. On the other hand, when the School declined to fund a parent-requested comprehensive classroom and social functioning evaluation to be conducted by a psychologist it gave clear reasons and later supported those reasons at the hearing. While agreeing to an independent classroom observation to provide balance to the teachers’ reports, the School refused to extend the classroom functioning observation to personal interviews, record reviews and developmental analysis. (S-3, p. 217-229) As reasons for its action the School noted: that the challenged assessments were completed by teachers and therefore that the independent evaluation should similarly be conducted by a teacher; that the assessments were limited to questions on state provided forms “Educational Assessment Part A” and “Part B” and that the independent evaluation should be similarly narrow in scope; and that extensive developmental, social, language and psychological information had been reviewed, collected and analyzed in both the independent psychological evaluation and the independent speech-language evaluation conducted within the preceding six months. (S-3, p. 228) The School then made a timely request for a hearing on its refusal to fund the Parent’s requested evaluation. At the hearing Mr. Hopkins, Dr. Abrahamson and Ms. Benedict explained how both the independent psychological and the independent speech and language evaluations comprehensively addressed any lingering concerns and questions the School had and how consideration of those evaluations affected the Team decision making process. They also pointed out that much of the information in Dr. Loomis’ report duplicated that in prior evaluations. The Parent, on the contrary, did not demonstrate the value to the February, 2002, Team, of an evaluation conducted 15 months later.
Considering the record as a whole I am persuaded that the School followed the procedural and substantive language of 603 CMR 28.04 (5) (d). It demonstrated that the evaluations already available to the Team were comprehensive and appropriate, that the requested evaluation went well beyond the scope of the challenged evaluation, and that any information developed as a result of the requested evaluation would be duplicative and of limited value in planning Ellora’s educational program. Therefore, I find that the School’s refusal to fund the evaluation conducted by Dr. Loomis was justifiable.6 The Parent is not entitled to public funding of the independent evaluation conducted by Dr. Loomis.
D. ORDER
The February, 2002, determination of the South Hadley Public Schools that Ellora is not eligible for special education is confirmed. South Hadley shall reimburse the Parent for any out-of-pocket expenses associated with the February 22 and March 8, 2003, speech-language evaluation conducted by Dr. Mercaitis. The Parent is not entitled to public funding of the April, 2003, evaluation completed by Dr. Loomis of The Center for Children with Special Needs.
By the Hearing Officer,
Date: July 14, 2003
Lndsay Byrne, Hearing Officer
1
Ellora is a pseudonym chosen by the Hearing Officer to protect the privacy of the student in publicly available documents.
2
Ms. Moore testified by telephone with the assent of the parties.
3
As set out in a March 31, 2003, prehearing Order.
4
In this letter, and other written materials in evidence, the Parent’s reference to an “assessment” by Mr. Wojnar
reflects a semantic misunderstanding. The evidence clearly establishes that no behavioral assessment of Ellora
was conducted by school personnel. See eg. S-3, p. 224.
5
The parties did not request a determination as to whether the Student is eligible for services under a 504
accomodation plan, and I therefore make no such finding.
6
This finding is in no way a comment on the professional expertise of Dr. Loomis whom I found to be a skilled and
sympathetic evaluator.