COMMONWEALTH OF MASSACHUSETTS
BUREAU OF SPECIAL EDUCATION APPEALS
In re: James1 and Hampden-Wilbraham Regional School District
BSEA 05- 4878
DECISION ON MOTIONS
This decision is rendered pursuant to M.G.L. Chapters 30A and 71B; 20 U.S.C. §1400 et seq .;2[2] 29 U.S.C. § 794; and the regulations promulgated under each of these statutes.
A Motions Hearing in the above-entitled matter was held telephonically on August 17, 2005 for approximately 2 ½ hours initiated from the Bureau of Special Education Appeals in Malden, MA.
STATEMENT OF THE CASE
On April 29, 2005 Parents filed a Hearing Request with the Bureau of Special Education Appeals. On May 5, 2005 Hampden-Wilbraham Regional School District’s (HW) Attorney filed a Notice of Appearance. Several postponements were granted, one to each side. A pre-hearing conference call took place on June 2, 2005. On June 10, 2005 the Hearing Officer scheduled a pre-hearing conference for June 24, 2005 and hearing dates for July 14, 19, & 20, 2005. Parents’ Attorney filed a Notice of Appearance on June 10, 2005. Several more postponements were requested. Pre-hearing conference calls took place on June 29, 2005 and July 11, 2005 and further proceedings were scheduled for August 15 & 16, 2005.
On August 8, 2005 HW’s Attorney filed the following motions:
1) School District’s Motion Requesting An Order That The Parents Submit A More Definite And Specific Amended Request For Hearing (Motion For More Definite Hearing Request);
2) School District’s Motion Requesting The Bureau Of Special Education Appeals To Issue An Order Authorizing The District To Conduct A Comprehensive Evaluation Of The Student And Override The Lack Of Consent By The Parents (Motion To Authorize School To Conduct Evaluation).
HW’s Attorney also filed:
3) A Memorandum Of Law In Support Of HW’s Motion To Authorize School To Conduct Evaluation including HW’s Statement Of Facts;
4) A Proposed Order;
5) A Request To Postpone The Pre-Hearing Conference.
On August 12, 2005 Parents’ Attorney wrote to the Hearing Officer concurring with HW’s
request for postponement of the pre-hearing conference and stating that Parents’ responses to HW’s Motions would be timely filed. On August 15, 2005 a pre-hearing conference call was held in which the pre-hearing conference scheduled for August 16, 2005 was postponed and a Hearing on HW’s Motions was scheduled for August 17, 2005. Parents’ Responses were to be filed by August 16, 2005.
On August 16, 2005 Parents’ Attorney filed:
1) Response Of Parents To School District’s Motion For A More Definite Hearing Request;
2) Supplemental Information To Be Annexed To April 29, 2005 Hearing Request;
3) Response/Opposition Of Parents To The School District’s Motion For An Order Authorizing The School District To Conduct A Comprehensive Evaluation Of The Student And Override The Lack of Consent By The Parent.
Parents’ Attorney also filed:
4) A Memorandum of Law and Facts;
5) Appendices A & B ( Parents’ Statement Of Facts).
In deciding these Motions the Hearing Officer has considered the above materials filed by
the parties; all written materials filed by the parties since Parents’ Hearing Request on April 29, 2005; and the oral arguments/representations made by Parents’ and HW’s Counsel at the August 17, 2005 Motions Hearing.
BACKGROUND
This case has a lengthy history of disagreement/conflict between the parties dating back to 2000-2001 prior to James’ 3 rd birthday, including a prior case before the BSEA that was withdrawn just prior to hearing in 2003. Unfortunately, such disagreement/conflict continues to the present time. (See HW’s Statement of Facts; Parents’ Statement of Facts; Parents’ Timeline submitted July 11, 2005 for a detailed chronology of events from 2000-2005.) Currently James remains a regular education student, home schooled since April 2005 of his 1 st grade year. Parents request James to be declared a student in need of special education and placed under an Individual Education Plan (IEP), as well as reimbursement for compensatory services privately provided by Parents.
RULING ON SCHOOL’S MOTION FOR A MORE DEFINITE HEARING REQUEST
I conclude that Parents’ Original Hearing Request was insufficient to meet the standards of IDEA 1997. However, with Parents’ Attorney’s August 16, 2005 submission of Parents’ Supplemental Information To Be Annexed To Parents’ Hearing Request filed on April 29, 2005, I conclude that Parents’ Hearing Request now does meet the minimal standards of IDEA 1997.3[3] That being said, time frames, specific compensatory services, requested for what lengths of time over what periods of time, what Parents mean by “Objective Team”, among other things are still unclear. Parents’ Attorney asserts that she will provide further supplementation and specifics to HW’s Attorney. I encourage her to do so. Certainly, as both attorneys agree, pre-hearing discovery can fill in many gaps of Parents’ Hearing Request with Annexed Supplementation. However, Parents’ Attorney has indicated Parents desire to keep costs down. If information flows cooperatively and informally between the parties, the need for extensive formal discovery and expenses related thereto many well be reduced.
SCHOOL’S MOTION TO AUTHORIZE SCHOOL TO CONDUCT EVALUATION
School’s Position : HW’s position is that it has a right under both federal and state special education law to conduct an unfettered, comprehensive evaluation of James by qualified professionals of its own choosing and not have to rely on Parents’ private evaluations and/or pieces of information selectively chosen by Parents, if Parents wish James to receive special education. HW contends that the history between the parties demonstrates that Parents have denied/restricted/withdrawn consents to evaluation by HW thereby constituting lack of consent; that Parents have thwarted/ interfered with/restricted HW’s right and ability to conduct evaluations and observations; and that Parents will allow evaluations using only evaluators of their choice, using testing instruments of their choice, under conditions of their choice, which does not constitute consent to evaluate. HW contends that even the most recent private evaluations provided to it by Parents from early 2004 are over 18 months old.
Parents’ Position : Parents’ position is that HW has not requested consent to evaluate James over the 2004-2005 school year. Therefore, there has been no lack of parental consent over this period. In paragraphs 9 & 10 of Parents’ Response To School’s Motion To Authorize School To Conduct Evaluations, Parents contend, in relevant part:
9) Parent does not deny that the School District has a right to conduct evaluations prior to a finding of eligibility for special education services, and would be willing to consent to evaluations by unbiased and independent evaluators …. Emphasis Added.
10) [James] has undergone extensive testing in the past and the law prohibits duplicative
testing.
At paragraph 29 of Parents’ Memorandum In Opposition To School’s Motion To Authorize School To Conduct Evaluations, Parents contend, in relevant part:
29) Parent does not disagree with the SD’s (School District) rather lengthy legal analysis regarding its right to conduct evaluations. However, the issue at hand is not legal but factual . The fact is that, in spite all of the evidence of the need for evaluations and IEP, the SD failed to exercise its right to conduct evaluations. The School District did not send a single consent form to Parents over the entire 2004-2005 school year.
RULING ON SCHOOL’S MOTION TO AUTHORIZE SCHOOL TO CONDUCT EVALUATION
Both federal and state special education law provide that the school shall provide a full individual evaluation for each child being considered for special education and related services to determine if the child is a child with a disability; and to determine the educational needs of the child. See 20 U.S.C. § 1414; 34 CFR 300.320, 300.531, 300.532, 300.533, 300.534, 300.535; 603 CMR 28.04. Similarly, both federal and state special education law provide that if parents of such child refuse consent for evaluation the school may continue to pursue an evaluation by utilizing due process proceedings. See 20 U.S.C. § 1414, 1415; 34 CFR 300.505, 300.507; 603 CMR 28.07, 28.08.
I conclude that HW is entitled to conduct a full, comprehensive evaluation of James by qualified professionals of HW’s own choosing. Neither Parents’ Response Memorandum nor oral argument cites any legal authority which would allow parental prohibition, parental control or parental conditions over a school’s legal right to conduct a comprehensive evaluation by qualified professionals of its own choosing (See Parents’ Position, above.) Conversely, federal courts have consistently and uniformly held that if parents wish to have their child receive special education
under the IDEA, the school must be allowed to evaluate the child by qualified professionals of its own choosing. In Andress v. Cleveland Independent School District 64 F. 3 rd 176, 178 (5 th Cir. 1995) the court held, in pertinent part:
If a student’s parents want him to receive special education under IDEA, they must allow the school itself to reevaluate the student and they cannot force the school to rely solely on an independent evaluation . Gregory K. v. Longview School Dist ., 811 F.2d 1307, 1315 (9 th Cir. 1987) (“If the parents want the student to receive special education under the Act, they are obliged to permit testing.”) Dubois v. Conn. State Bd. Of Ed ., 727 F.2d 44, 48 (2 nd Cir. 1984) (“[T] he school system may insist on evaluation by qualified professionals who are satisfactory to the school officials.”); Vander Malle v. Ambach , 673 F.2d 49, 53 (2 nd Cir. 1983) (School officials are “entitled to have [the student] examined by a qualified psychiatrist of their choosing.”) A parent who disagrees with school’s evaluation has the right to have the child evaluated by an independent evaluator, possibly at public expense, and the evaluation must be considered by the school district. 34 C.F.R. § 300.503.
It would be incongruous under the statute to recognize that the parents have reciprocal right to an independent evaluation, but the school does not .
A parent who desires for her child to receive special education must allow the school district to reevaluate the child using its own personnel; there is no exception to this rule . Student’s parents refused to allow the school district to reevaluate him. Therefore, [the] student was not eligible for special education. Emphasis added.
The 7 th Circuit Court of Appeals, citing Andress , noted that every circuit court to address the issue of a school’s right to conduct a reevaluation without parental consent has ruled that because the school is required to provide the student with his/her education, it must have the right to conduct its own evaluation of the student and cannot be forced to rely just on private parental evaluations. Johnson v. Duneland School Corporation , 92 F. 3 rd 554, 558 (7 th Cir. 1996). See also Gregory K. v. Longview School District 811 F. 2 nd 1307, 1315 (9 th Cir. 1987) Dubois v. Connecticut State Board of Education 727 F. 2 nd 44, 48 (2 nd Cir. 1984); Vander Malle v. Ambach 674 F. 2 nd 49, 53 (2 nd Cir. 1983).
BSEA decisions have been consistent with federal court decisions that schools are entitled to employ or contract with qualified professionals of their own choosing to conduct evaluations and that parents cannot limit the school to simply utilize private parental evaluations; place conditions upon the school’s evaluation; or determine the personnel or procedures to be utilized by the school. In In re: Falmouth Public Schools 4 MSER 95, 101 (1998) the Hearing Officer ruled:
FPS is entitled to use its own staff or to contract out, as needed, with specialists of its choosing to conduct its own assessments. It is a well established tenet in special education law that the schools are entitled to seek advice of their own employees prior to parents obtaining a second opinion , known as an independent evaluation under state and federal special education laws…..
The Parent does not have the right to determine the personnel and procedures to be used when the School conducts its own assessment. [Emphasis added by the Falmouth hearing officer.]
In In re: Boston Public Schools 5 MSER 144, 146 (1999) the issues were parental objection to a specific contracted evaluator (clinical psychologist) chosen by Boston to evaluate the Student rather than Parents’ choice; and whether Parent was entitled to impose terms and conditions on the
conduct of an evaluation to be performed by the school selected evaluator. The Hearing Officer ruled that Boston had the right and responsibility to select the appropriately qualified evaluator of its choice and further that:
The selection of the evaluation method, technique, setting, timing, sequence, process, instruments, etc. is committed to the discretion of the individual evaluator.
Similarly, in In re: Lowell Public Schools 8 MSER 162 (2002) Mother objected to the school’s evaluation of the Student; the school chosen staff to conduct the psychological evaluation and the academic/educational evaluation; and sought to improve numerous conditions on the performance of the evaluation including who could administer the evaluation. The Hearing Officer ruled that there was no legal basis or authority to support Mother’s position and allowed Lowell to proceed with its evaluation.
A review of all of the written materials submitted by HW and Parents indicates that despite numerous requests for evaluations by both HW and Parents, James has only been evaluated by HW as follows: 1) Occupational therapy (OT) and Physical therapy (PT) screenings in 2001; 2) PT evaluation in 2001; 3) OT evaluation in 2002; 4) Physiatrist/Rehabilitation evaluation in 2002;
5) Speech-Language (SL) evaluation in 2002; 6) OT evaluation in 2004 and 7) PT evaluation in 2004. Pursuant to 34 CFR 300.502 and 603 CMR 28.04(5) James has received an independent PT evaluation in 2002; an independent OT evaluation in 2003; and an independent SL evaluation in 2003. Although sometimes referred to as “independent evaluations” in the written materials submitted by counsel, counsel agree that all other evaluations of James have been private evaluations funded by Parents. These evaluations include a private neuropsychological evaluation performed in 2002; a private SL evaluation in 2003; a private SL evaluation in 2004; and a private neuropsychological and academic evaluation in 2004.
A review of the written materials submitted by HW and Parents also demonstrates a history of control issues over evaluations and their administration. Parents’ Attorney asserts that Parents have consented to evaluations which HW has failed to perform. However, except for the HW evaluations cited in the preceding paragraph, all requests by HW to evaluate James have been either
rejected, not responded to, accepted then withdrawn, restricted, limited or conditioned by Parents. (See HW’s Statement of Facts; Parents’ Appendices A& B /Statement of Facts/Chart of Evaluations/Consents; HW’s Supplemental Materials filed 8/18/05, for a comprehensive chronology of HW evaluation requests and Parental consent on lack thereof.) Several examples are illustrative.
From late 2002 through June 2003 HW attempted to gain Parents’ consent to comprehensive evaluations/observations of James. Parents would “consent” to a psychoeducational evaluation of James but only a particular school psychologist, not the licensed clinical psychologist whom HW wished to utilize. From September 2003 – January 2004 James was at a private, out of state school. James returned to HW in January 2004. In February 2004 HW again proposed comprehensive evaluations. The psychoeducational evaluation was again not consented to by Parents. I note that in February – March 2004 James received a private neuropsychological evaluation which was shared with HW in June 2004. The OT and PT evaluations were limited by Parents. Parents consented to the SL evaluation – then revoked their consent with a severely limited consent in several discreet SL areas. I note that Parents submitted to HW a private SL evaluation approximately 1 week prior to Parents’ revocation of consent to HW’s SL evaluation. In June 2004 HW again proposed a psychoeducational evaluation and SL evaluation of James which was not consented to by Parents. In June 2005 during a pre-hearing conference call HW proposed conducting a comprehensive evaluation and agreed to fund, pursuant to state mandated rates, an independent evaluation in any area of HW testing if Parents disagreed with HW’s finding. In July 2005 Parents rejected this proposal.
I do not dismiss HW’s inaction in not requesting evaluations of James during the 2004-2005 school year until after Parents filed this action. HW’s position is that James was making progress in regular education during the 2004-2005 school year until Parents removed him and began home schooling him in April 2005. Parents disagree and contend that any progress James made was due to the additional private remediation which they were providing to him. However, given the prior history between the parties regarding Parental consent/lack thereof to evaluations proposed by HW through June 2004, then repeated in June 2005, there is no reason to believe true Parental consent would have been forthcoming from September 2005 until June 2005.
Indeed, even during the Motions Hearing itself, Parents’ Attorney started that Parents have no objection to HW’s evaluation and are willing to allow evaluations but Parents need to know what specific testing will be performed, what areas of disability the testing will address, who will perform the evaluations, what are the specific qualifications of the evaluators. Later, Parents’ Attorney stated that Parents have no objections and will consent to the evaluations. but : 1) they object to the licensed clinical psychologist HW has designated to conduct the psychological/psychoeducational evaluation; 2) Parents must be informed, in writing and in advance, who the evaluators will be and the qualifications of the evaluators; 3) Parents must be informed, in writing and in advance what exact tests will be performed and what areas of disability these tests are designed to evaluate. Later still, Parents Attorney asserted Parents do not deny HW’s right to evaluate and Parents would welcome evaluations by unbiased professionals conducting proper testing.
In summary, based upon the written materials provided to me by the parties and the oral representations/argument made during the Motions Hearing, I conclude that Parents’ actions/inactions with respect to HW’s requests to perform evaluations do not constitute consent to such school evaluations. I conclude that it is not consent to allow evaluations only by professionals of Parents’ choice, using testing instruments of Parents’ choice, under conditions of Parents’ choice. The critical issue is a legal issue – does a school have a right to conduct its own school based evaluations using qualified professionals of its own choice. As analyzed above, federal and state special education statues and regulations, all federal courts that have addressed this issue, and the BSEA have uniformly held that schools do have the right to conduct their own school based evaluations using qualified professionals of their own choice since they are responsible for providing the child his/her education and/or special education and related services.
Parents request that James be found eligible for special education, be declared a special education student, and receive special education and related services. Parents assert that James has dyslexia, Attention Deficit Hyperactivity Disorder (ADHD), speech – language deficits, visual motor integration problems and sensory integration deficits. Therefore, the law requires that HW must be allowed to perform a comprehensive school based evaluation using qualified professionals of its own choosing to determine if James requires special education services at this time. Similarly, if this case proceeds to hearing, the Hearing Officer will require current evaluative information regarding whether James requires special education and, if so, what are the totality of James special education needs and how they should be appropriately addressed. I am not unsympathetic to Parents’ apprehensions regarding HW’s evaluation. However, if they disagree with the HW evaluation, they may obtain an independent evaluation by qualified professionals of their own choosing, pursuant to the requirements of federal and state special education law.
ORDER
I. Within thirty (30) school days, of the date of the receipt of this ORDER the Hampden-Wilbraham Regional School District shall complete the following evaluations of the Student and shall convene an Evaluation Team within forty-five (45) school days to consider the findings and recommendations therein:
A. Teacher Assessment(s) – report on how the Student functions in his classroom/school environment;
B. Educational History/Status;
C. Neuropsychological/Psycho-educational Assessment – report on intellectual abilities/cognitive processes, emotional/personality feature, 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;
D. Speech/Language Assessment – report on oral and written receptive and expressive language
skills, phonological processing, and pragmatics, including an observation in his educational placement if he is not being home schooled;
E. Occupational Therapy Assessment –report on fine motor functioning, including an observation in his educational placement if he is not being home schooled.
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.
III. The District shall abide by evaluation procedures as outlined in state and federal law.
IV. 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.
V. Within 45 school days Hampden-Wilbraham Regional School District shall provide Parents with two (2) copies of the proposed Individual Education Plan or Finding of No Special Needs.
VI. 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.
VII. 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.
VIII. The pre-hearing conference scheduled for September 9, 2005 is postponed.
IX. A pre-hearing conference dealing with all outstanding issues is scheduled for November 21, 2005 at 10:00 A.M. at Catuogno Court Reporting, 446 Main Street, Worcester, MA.
X. A hearing on the merits is scheduled for December 5, 6, 13 & 14 2005 from 10:00 A.M. – 5:00 P.M. each day at Catuogno Court Reporting 446 Main Street, Worcester, MA.
XI. Informal and, if necessary, formal discovery should take place in conformance with the above dates.4[4]
By the Hearing Officer,
__________________________
Dated: September 7, 2005
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
This case was filed on April 29, 2005. Therefore IDEA 1997, rather than IDEA 2004 which took effect on July 1, 2005, is the controlling federal statute.
3
Even with the Supplemental Information Annexed, Parents’ Hearing Request does not meet the more stringent standards of IDEA 2004.
4
The above dates are subject to change if Parents pursue an independent evaluation subsequest to HW’s evaluation.