Hampden Wilbraham Regional School District – BSEA # 05-4878



<br /> Hampden-Wilbraham Regional School District – BSEA# 05-4878<br />

COMMONWEALTH OF MASSACHUSETTS

BUREAU OF SPECIAL EDUCATION APPEALS

In re: James1 and Hampden-Wilbraham RSD – BSEA # 05-4878

RULINGS ON MOTIONS

These rulings are rendered pursuant to M.G.L. Chapters 30A and 71B; 20 U.S.C. §1400 et seq .; 29 U.S.C. §794; and the regulations promulgated under each of these statutes.

A Motions Hearing in the above-entitled matter was held on November 16, 2005 at Catuogno Court Reporting in Worcester, MA.

HISTORY/STATEMENT OF THE CASE

On April 29, 2005 Parents filed a Hearing Request with the Bureau of Special Education Appeals. On August 17, 2005 a Motions Hearing was held and on September 7, 2005 the Hearing Officer issued several Rulings and an extensive Order authorizing the Hampden-Wilbraham Regional School District (HW) to conduct a comprehensive evaluation of James, setting conditions, and establishing timelines for the evaluation, team meeting, and further BSEA proceedings. Please refer to DECISION ON MOTIONS issued on September 7, 2005 which is hereby incorporated by reference into these Rulings.

On October 2, 2005 Parents’ Attorney filed five (5) motions with the BSEA as follows:

1) MOTION FOR ORDER CORRECTING THE RECORD AND EFFECTUATING A REDACTION OF THE FALSE AND MISLEADING TITLE OF PREVIOUS MOTION OF HW DATED AUGUST 8, 2005 (PM1).

2) MOTION FOR ORDER OVERRIDING THE FAILURE OF HW TO COMPLY WITH 603 CMR 23.07(2) AND DIRECTING HW TO PROVIDE A COPY OF [JAMES’] COMPLETE, CUMULATIVE AND CONFIDENTIAL EDUCATIONAL FILE (PM2).

3) MOTION FOR ORDER OVERRIDING THE FAILURE OF HW TO CONVENE A TEAM MEETING WITHIN TEN DAYS OF RECEIPT OF INDEPENDENT EDUCATIONAL EVALUATION PURSUANT TO 603 CMR 28.04(5)(d); AND FOR AN ORDER DIRECTING HW TO COMPLY WITH SAID STATUTE BY CONVENING A TEAM MEETING TO REVIEW THE INDEPENDENT EDUCATIONAL EVALUATION (PM3).

4) MOTION FOR ORDER DIRECTING THAT THE HW EVALUATIONS PREVIOUSLY ORDERED TO BE COMPLETED BY HW BE DONE IN AREAS OF IDENTIFIED AS WELL AS SUSPECTED NEED AND BE PERFORMED BY QUALIFIED EVALUATORS, AND FURTHER, THAT ALL EVALUATIONS PREVIOUSLY PERFORMED BE REVIEWED AND CONSIDERED BY HW EVALUATORS. (PM4).

5) MOTION FOR ORDER OVERRIDING THE REFUSAL OF HW TO COMMUNICATE WITH [JAMES’] PARENTS REGARDING HIS REGULAR EDUCATION NEEDS AND DIRECTING HW TO COMMUNICATE DIRECTLY WITH PARENTS REGARDING [JAMES’] REGULAR EDUCATION (PM5).

Parents Motions PM1 through PM5 were accompanied by written arguments, exhibits and affidavits.

On October 11, 2005 HW’s Attorney filed with the BSEA Oppositions to PM1 through PM5 with accompanying written argument, exhibits and affidavits. On October 11, 2005 HW’s

Attorney also filed HW’S MOTION TO EXTEND TIMELINE ORDERED BY THE HEARING OFFICER IN HIS DECISION OF SEPTEMBER 7, 2005 with accompanying affidavits (SM1).

On October 12, 2005 HW’s Attorney filed with the BSEA HW’S MOTION TO DISMISS THIS APPEAL with accompanying written argument, exhibits and affidavits (SM2).

On October 18, 2005 Parents’ Attorney filed with the BSEA Parents’ Opposition To HW’s Motion To Dismiss with accompanying written argument and exhibits.

On November 1, 2005 Parents’ Attorney filed with the BSEA a MOTION FOR SUMMARY DECISION AND AN ORDER DETERMINING THAT AS A MATTER OF LAW, [JAMES] HAS A DISABILITY OR DISABILITIES PURSUANT TO THE DEFINITIONS CONTAINED WITHIN FEDERAL AND STATE LAW. This motion was accompanied by extensive exhibits (PM6).

On November 10, 2005 HW’s Attorney filed with the BSEA HW’s Opposition to Parents’ Motion For Summary Decision with accompanying written argument and one exhibit.

A Motions Hearing was scheduled for November 16, 2005 at Catuogno Court Reporting in Worcester, MA. However, on November 15, 2005 the Hearing Officer was notified by both Parents’ Attorney and Parents that Parents’ Attorney had been discharged and that Parents would be proceeding at the Motions Session pro se. On November 16, 2005 the scheduled session took place and an extensive discussion on numerous issues was held on the record but formal oral argument regarding the outstanding motions did not take place, due to the unique circumstances of this case. Oral argument was re-scheduled for December 2, 2005. The parties subsequently agreed to submit written supplementary arguments/exhibits /affidavits to the seven outstanding motions in lieu of oral arguments. The postmark date for receipt of such written materials was set for December 5, 2005 and all written supplementary arguments/exhibits arrived at BSEA by December 8, 2005.

In deciding these motions the Hearing Officer has considered all of the above written motions, arguments, exhibits, and affidavits filed by Parents’ former attorney and HW’s attorney, as well as all of the written supplementary arguments, exhibits and affidavits filed by Parents, pro se and HW’s attorney. The Hearing Officer has also incorporated by reference into these Rulings his DECION ON MOTIONS dated September 7, 2005. Finally, the Hearing Officer has reviewed and considered the oral arguments/representations made by HW’s and Parents’ Attorney at the August 17, 2005 Motions Hearing as well as all written materials filed by the parties since Parents’ Hearing Request on April 29, 2005.

RULING ON PM 1

PM 1 is hereby DENIED . Parents essentially re-argue the issues which were the subject of the August 17, 2005 Motions Hearing and which were ruled upon in the September 7, 2005 DECISION ON MOTIONS (9/7/05 DOM). I specifically refer the parties to pages 3 through 8 in the 9/7/05 DOM.

The issue of the STAT Team raised by Parents in this motion was not pertinent to the 9/7/05 DOM authorizing HW to conduct a comprehensive evaluation. This issue may be raised by Parents at the hearing.

Finally, Parents were provided a complete copy of the tapes of the August 17, 2005 Motions Session. The tape recorder was never turned on and off during the August 17, 2005 Motions Session except at the end of each side of the tape when the tape ran out and needed to be turned over or a new tape inserted, or if the Hearing Officer said “Off the record.” Any implication otherwise is totally unfounded. Nor does any discussion continue on the tape after the Hearing Officer ended the motions session. This motions session was conducted via telephone. At the end of the motions session the session was adjourned, the participants said good-bye, the Hearing Officer turned off the tape recorder and hung up the telephone.

RULING ON PM 2

Parents allege that HW has failed to provide a copy of James’ complete, cumulative and confidential educational file. HW responds that on September 23, 2005 it provided Parents’ Attorney with copies of all of James’ school records from January 1, 2004 onward (400 pages) as requested. HW also responds that it has previously provided extensive copies of James’ school records pursuant to Parents’ previous hearing request before the BSEA (BSEA #02-1842) consisting of 206 exhibits; Parents’ Program Quality Assurance Complaint in 2003 consisting of 75 exhibits; and Parents’ Office of Civil Rights Complaint in 2004 consisting of 99 exhibits. HW alleges that these three sets of exhibits compromised over 1,000 pages. Finally, HW responds that in September 2004 Parent spent hours in HW’s special education office flagging documents in James’ special education file that she wanted copied and which were provided to her consisting of approximately 400 pages. In its supplemental response to these motions HW includes copies of the four assessments that have been completed pursuant to the Hearing Officers’ ORDER in the 9/7/05 DOM –speech-language evaluation; occupational therapy evaluation; educational history and assessment; and classroom teacher’s educational assessment. HW alleges that it has already provided copies of all documents pertaining to James in its files both currently and over the past few years; that additional documents requested by Parents either do not exist, have already been provided to Parents, or are not kept by HW. HW emphasizes that it has no other educational records of James to provide to Parents other that those records which have already been provided to Parents.

Parents obviously believe that they do not have James’ complete educational file. It is equally clear that HW believes that it has furnished everything they have in James educational file to Parents pursuant to the Student Records Act.

PM2 is GRANTED . At Parents’ election I order one of the two following options to take place. Either: 1) Consistent with the Student Records Act HW furnish Parents a complete copy of James cumulative educational file up to the present date and all at the same time; or 2) Consistent with the Student Records Act Parent be allowed, once again, to review James’ complete educational file and to specify specific documents she wishes HW to reproduce for her. Under either option HW may impose an appropriate fee for copying costs. Given that James’complete educational file is exceptionally large, option 2 may be the more cost effective choice.

RULING ON PM 3

On August 31, 2005 HW received from Parents the results of a parentally funded private evaluation performed by Dr. Robert Kemper. Parents contend that HW has failed to comply with 603 CMR 28.04(5)(f) by failing to convene within ten days a meeting to consider the “Independent Educational Evaluation”. HW responds that HW received the Kemper evaluation on August 31, 2005 which was two weeks after the Motions Hearing on August 17, 2005 on HW’s Motion To Authorize HW To Conduct Comprehensive Evaluation Of The Student And Override The Lack Of Consent By The Parents; and which was one week prior to the Hearing Officers’ 9/7/05 DOM which authorized HW to perform a comprehensive evaluation of the student. HW contends that it is not obligated to consider privately obtained evaluations where Parents have denied consent for HW to perform its own evaluations; and that HW will convene a team to consider the Kemper report once HW has completed its own evaluations as ordered by the Hearing Officer.

PM3 is DENIED . Please refer to the analysis in the 9/7/05 DOM, specifically on page 5, inter alia, that if parents wish a student to receive special education under state and federal special education law they must allow the school to evaluate the student and cannot force the school to rely solely on independent or private parental evaluations. Further 603 CMR 28.04(5)(f) requires the school to convene a team meeting within ten days of an independent educational evaluation (IEE). All of 603 CMR 28.04(5) deals within the context of a true IEE , to wit:
(5) Independent educational 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 educational evaluation . Emphasis added.

Dr. Kemper’s evaluation is a privately obtained parental evaluation. It is not an IEE requested by Parents after the school evaluation. The 603 CMR 28.04(5)(f) 10 day rule applies only to IEE’s, not privately obtained parental evaluations.

Pursuant to 34 CFR 300.502(c)(1) this private evaluation must ultimately be considered by HW after HW has completed its evaluation of James. Further, Parents may introduce this private evaluation at a BSEA Hearing.

RULING ON PM 4

PM4 is DENIED . The ORDER at the conclusion of the 9/7/05 DOM provides, in pertinent part:

III. The District shall abide by evaluation procedures as outlined in state and federal law.

Parents’ Motion is superfluous.

RULING ON PM 5

Parents allege that HW refuses to communicate with them regarding James’ regular education needs and is treating them in an inequitable and discriminatory manner. Parents seek an order directing HW to communicate with them directly regarding regular education matters. Parents’ Motion and Mother’s affidavit (Exhibit A appended to PM5) describes the circumstances and situations in which she believes that HW has refused to communicate with Parents. HW’s response specifically disputes and/or denies Parents various contentions.

In an August 29, 2005 letter from HW’s Attorney to Parents’ then Attorney (PM5 – Exhibit B), HW’s Attorney writes, in pertinent part:

1. As both parties are represented by counsel, I have instructed school district staff that all communications directly or indirectly related to the current litigation (BSEA # 05-4878) shall be forwarded to my attention. I will respond directly to you as parents’ attorney….

2. Please advise your client that the District will not respond to her questions related to the current litigation unless they are in the form of discovery as allowed under the applicable regulations….

Appended to HW’s Opposition to PM5 is a notice regarding the September 14, 2005 Open House and two affidavits from the Title I reading teacher and the building principal. The Open House Notice describes the purposes of the Open House and states that:

Parent/teacher conference to talk about your child will be held on November 10, 2005.

According to the reading teacher’s affidavit, at the Open House Parent asked specific questions regarding James’ DRA assessments, James’ testing levels, where James should be on these assessments, and requested copies of the DRA assessments. The reading teacher’s affidavit described why she was so upset with this conversation with Parents. According to the principal’s affidavit, at the Open House Parent questioned her about James’ DRA assessments and

11. The Student’s mother then began to talk about what she perceived to be unfairness and discrepancies in the Hearing Officer’s recent decision. I was extremely uncomfortable with the nature of this conversation, particularly as it occurred in a public place within hearing of several other individuals. I was also uncomfortable because I was inappropriately being placed in the position of discussing issues relating to the ongoing legal dispute between the parents and the school district.

Parents’ Motion is DENIED . Clearly the parties are in a stressful position given the pending litigation. However, I find HW’s position regarding communications related to the current litigation to be justified. Further, documentation provided in HW’s written supplementation

(Tab 6) indicates that Parents did have a Parent-teacher conference on November 10, 2005 and that Parents and James’ teacher are communicating via a “notes home” agenda book. I encourage Parents and HW to continue to communicate regarding James’ regular education program and experience.

RULING ON SM 1

HW’S Motion to extend the timelines ordered by the Hearing Officer in his 9/7/05 DOM is GRANTED for reasons that will become apparent in RULING ON SM 2 below.

RULING ON SM 2

HW’s Motion To Dismiss This Appeal consists of three time periods:

1. All claims prior to April 29, 2002 as they are time-barred by the applicable statute of limitations;

2. All claims from April 29, 2002 to October 13, 2004 based upon Parents’ ongoing refusal to consent to HW’s performing evaluations;

3. All claims from October 14, 2004 to the present time based upon Parents’ refusal to abide by the Hearing Officer’s ORDER in the 9/7/05 DOM.

Parents’ oppose HW’s Motion to Dismiss for any time periods.

Prior To April 29, 2002

Regarding the time period prior to April 29, 2002 HW’s Motion to Dismiss is GRANTED . Although IDEA 1997 has no reference to a statute of limitations, the U. S. Court of Appeals for the First Circuit, which includes Massachusetts, has upheld borrowing an appropriate statute of limitations for IDEA appeals from a statute most analogous to/consistent with the IDEA. Murphy v. Timberlane 22 F. 3d. 1186 (1st Cir. 1994); Amann v. Town of Stow 991 F. 2d. 929 (1 st Cir. 1993). Since 1999 the BSEA has adopted a three year statute of limitations for special education appeals, borrowed from the Massachusetts civil rights statute of limitations as most analogous to a claim under the IDEA and comporting with the purposes underlying the IDEA. In re: Fall River Public Schools 5 MSER 183 (1999). Parents’ BSEA appeal was filed on April 29, 2005. Therefore, all claims prior to April 29, 2002 are time barred by the three-year statue of limitations and are therefore DISMISSED .2

April 29, 2002 to October 13, 2004

HW moves to dismiss all claims from April 29, 2002 to October 13, 2004 based upon Parents’ consistent refusal to consent to HW evaluations. The October 13, 2004 date is thirty school days from HW’s June 10, 2004 team meeting request to evaluate James which was refused by Parents i.e., the thirty school days HW would have had to complete the evaluation if Parents had given their consent. I shall rule on this time period within the context of my reasoning for the final time period sought by HW.

October 14, 2004 to the present time

HW moves to dismiss all claims from October 14, 2004 to the present time as a result of Parents’ failure/refusal to abide by the Hearing Officer’s ORDER of September 7, 2005.

In the 9/7/05 DOM the Hearing Officer specified in his ORDER authorizing HW to conduct a comprehensive evaluation of James:

II. The Parents may meet with the School District’s chosen evaluators to provide their input regarding the areas assessed. In all other respects the parents shall not interfere with the assessment and shall fully cooperate with all assessment procedures .

On September 14, 2005 HW’s Attorney sent Parents’ Attorney a letter identifying the evaluators who would perform HW’s testing and setting up a time for Parents to meet with these evaluators (SM2-Exhibit 1). On September 20, 2005 Parents’ Attorney sent HW’s Attorney a four page letter indicating that Parents would be out of town; describing James’ disabilities; delineating all prior evaluations for HW to consider; and instructing HW as to the regulations which they must follow (SM2-Exhibit 2). Also on September 20, 2005 HW’s Attorney sent to Parents’ Attorney a letter delineating the dates and times the neuropsychological/psycho-educational evaluator (Dr. Ecker) had set aside to evaluate James (SM2-Ex. 3). On September 22, 2005 Dr. Ecker sent Parents, via HW’s Attorney, a letter seeking to meet to obtain background information, any psychological evaluations since Parents private neuropsychological evaluation in 2004, and the time frame for such testing which might affect his choice of testing instruments (SM2-Ex. 4). On September 23, 2005 Parents’ Attorney wrote to the psychologist, via HW’s Attorney, but did not fax this letter until September 27, 2005, the same day a copy of this letter was faxed directly to

Dr. Ecker by Parents (SM2-Ex.5). In this letter Parents’ Attorney questioned the length of time and the specific time periods set aside for the testing and requested a list of the testing Dr. Ecker planned to perform which would take 11.5 hours; questioned Dr. Ecker’s professional relationship with another professional practice; and questioned his relationship/status with HW. Three specific quotes from SM2-Ex.5 follow:

As you have been intimately involved in this case since 2002, we would hope that you have
learned something about [James] over the years….

Finally, we would like to advise you that we will require that all of the testing performed on
[James] be tape recorded without his knowledge, in order that we may ascertain that testing
protocol is followed….

Also we will expect to be provided with copies of all testing forms including question and
answer sheets, once the testing is completed.

Also on September 27, 2005 Parents faxed their own letter directly to Dr. Ecker
(SM2-Ex. 6). The first sentence of this letter states:

We are writing to notify you that we are opposed to your professional involvement in regard
to our son, [James].

Later in the letter, Parents write:

We continue to be opposed to your involvement as an issue of professional ethics.

This letter also questions Dr. Ecker’s status as an outside consultant to HW; questioned a professional relationship with another professional practice; and stated:

You are also to be a witness in a civil matter before the Court in Boston regarding your
prior involvement with our son….

Also on September 27, 2005 Parent left a voice mail message on Dr. Ecker’s telephone confirming that Parents had faxed Dr. Ecker the above letter; that their attorney also had sent Dr. Ecker a letter; and that Parents wanted to make sure that both had been received by Dr. Ecker (SM2-Ex.7).

In Dr. Ecker’s October 7, 2005 affidavit (SM2-Ex. 7) he stated that both letters were an attack on his personal and professional ethics as well as a question of his competence; that he was unaware of any involvement in any civil matter in Boston or any other court; that said letters subjected him to harassments, threats, and clearly were an attempt to compromise his professional abilities; and that based upon his level discomfort and the untenable situation created by these communications, he could not go ahead with the testing of James until the issue of these above referenced letter can be resolved.

BSEA Rule XVII(B) and 801 CMR 1.01(7)(g)(2) provide for dismissal of a case for failure to comply with these rules or with any Hearing Officer Order. The language in these two administrative regulatory provisions mirrors the language in both the Massachusetts Rules of Civil Procedure Rule 41B and the Federal Rules of Civil Procedure Rule 41B which govern orders of the Massachusetts and Federal Courts. BSEA Rule (B)(16) also gives the Hearing Officer the duty and authority to censure, reprimand or otherwise ensure that all participants conduct themselves in an appropriate manner.

Given the 9/7/05 DOM Order #2 cited above; and given Parents’ and their then Attorney’s letters cited above; Parents and their then Attorney have clearly violated the Hearing Officer’s Order not to interfere with the assessment and to fully cooperate with all assessment procedures. The above-cited letters can have no purpose other than to interfere with Dr. Ecker’s evaluation of James. These letters attempt to impose terms and conditions on the neuropsychological/psycho-educational evaluation sought by HW and ordered by the Hearing Officer; to intimidate, harass and threaten HW’s chosen evaluator; and to insure that such evaluation will not take place.

I find the above actions taken by Parents and their then Attorney to be contemptuous. Were this matter being held in a state or federal court, such actions would subject them to a finding of contempt. Dismissal has been found to be a justified and appropriate remedy where there is a clear record of delay or contemptuous conduct by the plaintiff and where the non-compliant litigant has manifested a disregard for orders of the court. John’s Insulation v. L. Addison & Associates 156 F.3d. 101 (1 st Cir. 1998); Legault v. Zambarano 105 F.3d 24 (1 st Cir. 1997); Carter v. Memphis 636 F. 2d. 159 (6 th Cir. 1980).

I do not completely dismiss Parents’ appeal for two reasons. First, Parents have apparently allowed all other ordered evaluations to take place. Second, I am mindful that at the heart of this dispute is a seven-year-old boy and that this appeals process is to insure that children receive those services to which they are entitled under special education law if they are eligible for special education and require special education services. However, given Parents’ position regarding James’ disabilities/need for special education (see 9/7/05 DOM), the neuropsychological/psycho-educational evaluation is critical to HW’s determination of James’ eligibility/ineligibility for special education; the types and degree of services necessary, if any; and for the effective presentation of HW’s case at a BSEA Hearing. HW is legally entitled to conduct its own evaluation of James if Parents wish James to receive special education services from HW. (See complete analysis of statutory, regulatory and case law in 9/7/05 DOM). I note that had Parents/Parents’ then Attorney not interfered with the neuropsychological/psycho-educational evaluation process; and had Parents/Parent’s then Attorney followed the Hearing Officer’s 9/7/05 ORDER; the evaluation process would have been completed; a team meeting would have been held; a determination of special education eligibility would have been made either finding James eligible and developing an IEP or finding James ineligible; and, if necessary, a hearing would have already taken place.

Parents’ actions in violating the Hearing Officer’s Order not to interfere in the evaluation process undercuts the integrity of the BSEA hearing process. “It is axiomatic that a party may not ignore a district court order with impunity.” John’s Insulation v. L. Addison & Associates 156 F.3d. 101(1 st Cir. 1998). To allow Parents’ contemptuous actions and conduct without a substantial sanction would be to allow Parents to ignore BSEA Orders with impunity and to escape the foreseeable consequences of their non-compliance. See also Legault v. Zambarano 105 F. 3d 24 (1 st . Cir. 1997); In re: Medford Public Schools 10 MSER 18 (2004). Parents filed this appeal on April 29, 2005. Parents actions have caused at least a three-month delay in this appeal. The IDEA 2004, with its two year statute of limitations, took effect on July 1, 2005 slightly more than two months after Parents filed this BSEA appeal. Therefore, as a sanction for Parents’ blatant disregard of a BSEA Order, Parents claim for relief shall be allowed to go back only two years to April 29, 2003 instead of April 29, 2002. Therefore, all Parental claims for relief prior to April 29, 2003 are hereby DISMISSED WITH PREJUDICE .

Furthermore, any further interference with HW’s performance of a neuropsychological-psychoeducational evaluation of James with a professional/professionals of HW’s own choosing will result in a complete DISMISSAL WITH PREJUDICE of BSEA #05-4878.

ORDER

I. Within thirty (30) school days of the receipt of this ORDER the Hampden-Wilbraham Regional School District shall complete the following evaluation of the Student:

Neuropsychological/Psycho-educational Assessment-report on intellectual abilities/cognitive process, emotional/personality features, behavior, learning style, academic skills/achievement in reading, math, spelling and writing, attention, memory, executive functioning, and language, including an observation in his educational placement if he is not being home schooled.

II. Within forty-five (45) school days of the date of the receipt of this ORDER the Hampden-Wilbraham Regional School District shall convene an Evaluation Team to consider the findings and recommendations of said evaluation; all other HW evaluations performed pursuant to the 9/7/05 DOM ORDER ; and Parents’ private evaluation performed by Dr. Kemper.

III. The Parents may meet with the School District’s chosen evaluator(s) to provide their input regarding the areas assessed. In all other respects, the Parents shall not interfere with the assessment and shall fully cooperate with all assessment procedures .

IV. The District shall abide by evaluation procedures as outlined in state and federal law.

V. The District shall forward copies of evaluation reports to the Parents at least two (2) days prior to the scheduled TEAM meeting to consider the assessments.

VI. Within 45 school days Hamden-Wilbraham Regional School District shall provide Parents with two (2) copies of the proposed Individual Education Plan or Finding of No Special Needs.

VII. Hampden-Wilbraham Regional School District shall fund, at Division of Health Care Finance and Policy Ambulatory Care (Rate Setting) rates, independent evaluations requested by the Parents in the areas tested by Hampden-Wilbraham Regional School District if Parents disagree with those assessments.

VIII. Within ten (10) business days of the issuance of the Individual Education Plan or Finding of No Special Needs, the parties shall submit a written status report to the Hearing Officer.

RULING ON PM 6

Parents move for a Summary Decision/Order that as a matter of law James has a disability/disabilities pursuant to the definitions contained within federal and state statutes and regulations. Parents cite numerous evaluations which have been performed upon James and their findings in support of their motion. HW opposes Parents’ Motion for Summary Decision on both legal and factual grounds.

801 CMR 1.01(7)(h) Motion for Summary Decision provides:

When a Party is of the opinion there is no genuine issue of fact relating to all or part of a claim or defense and he is entitled to prevail as a mater of law, the Party may move, with or without supporting affidavits, for summary decision on the claim or defense. If the motion is granted as to part of a claim or defense that is not dispositive of the case, further proceedings shall be held on the remaining issues. Emphasis added.

See also Mass. R. Civ. P 56(c); Fed R. Civ. P. 56(c); Celotex v. Catrett 477 U.S. 317, 322 (1996); Catlin v. Board of Registration of Architects 414 Mass. 1, 604 N.E. 2d 1301, 1306 (Mass. 1992); In re: Boston Public Schools 39 IDELR 20 (2003). All evidence must be viewed in the light most favorable to the party opposing summary judgment, Anderson v. Liberty Lobby, Inc . 477 U.S. 242, 248 (1986); In re: Boston Public Schools , supra.

Of all of the Parent exhibits cited in PM6, only one exhibit is an HW evaluation and that is an occupational therapy evaluation which is almost four years old. The remaining evaluations are parentally obtained private evaluations. HW alleges that none of these evaluators observed James in his public school setting or spoke with his teachers. HW alleges that James’ teachers did not see the level of disability manifested in James’ classroom performance which was described by the parentally obtained private evaluations. Clearly there are genuine issues as to material facts in this case. Further, what has been a crucial issue in this appeal has been Parents’ lack of /refusal to consent to school initiated evaluations (See 9/7/05 DOM), and this continues to be the issue regarding the critical neuropsychological/psycho-educational evaluation by HW that still has not yet taken place due to Parental actions (See RULING ON SM 2 , above).

Once the school based/Hearing Officer Ordered evaluations have been completed, pursuant to 20 U.S.C. 1414(b) and (c) and 603 CMR 28.5, a team will meet to consider said evaluations, along with Dr. Kemper’s private evaluation (34 CFR 300.502(c)(1)), to make a determination regarding special education eligibility. If the team determines that James requires special education services, it will develop an Individual Education Plan (IEP). After a hearing on the merits the Hearing Officer may either affirm the findings of the team or override them. However, the Hearing Officer will not usurp the team decision prior to the team process which is legally mandated under state and federal special education law.

Finally, under both state and federal special education law, the existence of a disability or disabilities does not always render a student eligible for special education and related services. The disability/disabilities must have a negative impact on the student’s ability to effectively progress within regular education for the student to be eligible to receive special education and related services. (See 603 CMR 28.02(9); 34 CFR 300.7(a)(1); In re: New Bedford Public Schools 35 IDELR 266 (2001); In re: Stoneham Public Schools 28 IDELR 256 (1998). Quoting 603 CMR 28.02(9) in its entirety:
(9) Eligible student shall mean a person aged three through twenty-one (3-21) who has not attained a high school diploma or its equivalent, who has been determined by a Team to have a disability(ies), and as a consequence is unable to progress effectively in the general education program without specially designed instruction or is unable to access the general curriculum without a related serve . An eligible student shall have the right to receive special education and any related services that are necessary for the student to benefit from special education or that are necessary for the student to access the general curriculum. In determining eligibility, the school district must thoroughly evaluate and provide a narrative description of the student’s educational and developmental potential . Emphasis added.

For all of the above reasons PM 6 is DENIED .

By the Hearing Officer,

__________________________

Dated: February 15, 2006

Raymond A. Oliver


1

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


2

The reauthorized IDEA (IDEA 2004) specifically provides for only a two year statue of limitations for appeals filed under IDEA 2004 which went into effect July 1, 2005.


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