COMMONWEALTH OF MASSACHUSETTS
SPECIAL EDUCATION APPEALS
In Re: Holliston Public Schools v. Student
BSEA # 08-7013
DECISION
This decision is issued pursuant to the Individuals with Disabilities Education Act (20 USC 1400 et seq .), Section 504 of the Rehabilitation Act of 1973 (29 USC 794), the state special education law (MGL ch. 71B), the state Administrative Procedure Act (MGL ch. 30A), and the regulations promulgated under these statutes.
On May 20, 2008, Holliston Public Schools filed a Request for Hearing in the above-referenced matter. The hearing was held on July 23, 2008, at the BSEA, 11 Dartmouth St., Malden, Massachusetts, before Hearing Officer Rosa I. Figueroa. Those present for all or part of the proceedings were:
Marla Colarusso, Student Services Director, Holliston Public Schools
Janet Denzer Team Chairperson, Holliston Public Schools
Colby Brunt, Esq. Attorney for Holliston Public Schools
The official record of the hearing consists of documents submitted by Holliston Public Schools (Holliston) and marked as exhibits SE-1 through SE-11; recorded oral testimony and oral closing argument. The record closed on July 23, 2008.
PROCEDURAL BACKGROUND:
Upon receipt of Holliston’s Request for Hearing, the BSEA issued a Notice of Hearing on May 21, 2008. This notice informed the Parties that a telephone conference call was scheduled for June 6, 2008 at 4:00 PM and also that the Hearing would take place on June 9, 2008. On June 2, 2008, Holliston requested a postponement of the hearing on the basis that Parents had not provided a response to the hearing request by the deadline set in the Notice of Hearing, and proposed that new hearing dates be scheduled during the conference call set for June 6, 2008. When the telephone conference call was attempted on June 6, 2008, the BSEA was unable to reach either parent, and the conference call was re-scheduled for Friday June 20, 2008 at Holliston’s request. A new notice was issued on June 10, 2008 reflecting the new date for the conference call, and directing Parents to furnish a working telephone number by June 18, 2008. Parents failed to comply with the BSEA Order. On June 10, 2008, Holliston forwarded to the BSEA all of the telephone numbers it had on file for Parents.
Between June 6 and June 17, 2008, Paul O’Brien, the BSEA Scheduling Coordinator, attempted to reach Parents via telephone on five occasions for the purpose of scheduling the hearing. On June 17, 2008 Student’s father returned his call and indicted to Mr. O’Brien that he would relay the proposed hearing dates to his wife, as she was the person handling Student’s case. Later on June 17, 2008, Student’s mother called Mr. O’Brien and indicated that she would not participate in the hearing and informed Mr. O’Brien that the BSEA was “free to proceed with this matter.” Mr. O’ Brien asked Mother to forward her position in writing to the BSEA, which she declined to do. This information was relayed to Holliston’s attorney and to the Hearing Officer on June 17, 2008. Holliston’s attorney requested that the hearing proceed and provided available dates.
On June 20, 2008, an Order setting this matter for hearing on July 23, 2008 was forwarded to the Parties. Parents did not appear on the date of hearing at the designated time. The BSEA attempted to reach them over the telephone and waited one half hour before commencing the hearing to allow Parents an opportunity to arrive. Parents did not appear and the hearing commenced.
HEARING ISSUES:
1. Whether the educational evaluation conducted by Holliston is comprehensive and appropriate, and if not,
2. Whether Parents are entitled to an independent educational evaluation at Holliston’s expense?
POSITION OF THE PARTIES:
Holliston’s Position:
Holliston asserts that it conducted a comprehensive and appropriate evaluation of Student and is therefore, not responsible to fund an independent evaluation at Parents’ request. According to Holliston, Parents did not specify the areas of Holliston’s evaluation with which they disagreed.
Holliston further states that it attempted to work with Parents to ascertain what independent evaluation they sought, but received no clarification, leaving Holliston no other option but to request a hearing on a denial of a publicly funded evaluation pursuant to the mandates ofthe Massachusetts Special Education Regulations.
Parents’ Position:
Parents elected not to participate in the Hearing. Holliston however, explained that Parents sought an independent evaluation at school district’s expense.
FINDINGS OF FACT
1. Student is a 13 year-old resident of Holliston, Massachusetts. (SE-3) Student’s eligibility and entitlement to special education is not at issue. The area of disability identified by Holliston’s Team is health/ADHD. ( Id. )
2. Student attended Holliston Public Schools through the fifth grade, and was then transferred to St. Bridget’s School in Framingham, Massachusetts, where she repeated fifth grade. (SE-3; SE-4) While in the fifth grade at Holliston, Student was referred for academic testing due to difficulties in the classroom associated with reading. She was not found eligible to receive special education services at that time. (SE-4)
3. Throughout all relevant periods covered by this decision, Student attended St. Bridget’s School as a seventh grader. (SE-3; SE-7; Testimony of Ms. Denzer)
4. Jeannette Denzer, Student Services Administrator, Adams Middle School in Holliston, testified that in January 2008, she received a letter from Mother, which included letters from Student’s teachers at St. Bridget’s School, raising concerns over Student’s academic ability, and behavioral difficulties in class. (Testimony of Ms. Denzer) These concerns included difficulties in reading, reading comprehension, writing, organizational skills, picking at herself, taking things from other students’ desks, and inability to focus in class. Student was referred for an evaluation. (SE-4; Testimony of Ms. Denzer)
5. Within five days of receipt of Parents’ concerns, Ms. Denzer forwarded to Parents a Notice of School District Action with an evaluation consent form proposing to conduct an Educational Achievement Assessment; an Educational Assessment (inclusive of Student’s educational progress/ performance in the general curriculum); an observation; and a Psychological Assessment, on January 11, 2008. (SE-8; Testimony of Ms. Denzer) According to Ms. Denzer, the Parents’ Rights Brochure was included with the request for school district evaluation consent form. Parent consented to the evaluations proposed by Holliston on January 28, 2008 but also requested the addition of a Health Assessment to review Student’s Attention Deficit Disorder and evaluate medication. (SE-8)
6. Following a telephone conference call with Father on February 15, 2008, Father agreed that the health assessment would not be required. (SE-8) The Parties were interested in ascertaining whether Student’s diagnosed Attention Deficit Disorder was impacting on her performance difficulties or whether other issues were involved. (Testimony of Ms. Denzer)
7. Ms. Denzer testified that Holliston conducted Student’s evaluations within 30 days of the day on which it received Parents’ consent and reconvened Student’s team within 45 days of said date consistent with the Massachusetts Special Education Regulations. (Testimony of Ms. Denzer)
8. Marla Colarusso, Director of Student Services in Holliston, was the individual responsible to schedule the evaluations, observations and for forwarding the IEP to Parents. (Testimony of Ms. Colarusso) Ms. Colarusso is also the person responsible to ensure that the district complies with the Massachusetts Regulations for Special Education, and provides support to the building administrators regarding compliance with the aforementioned regulations. (Testimony of Ms. Colarusso)
9. On March 3, 2008, Jackie D’ Andrea, Holliston Public Schools, performed an academic learning assessment. (SE-4) She administered the Woodcock-Johnson III Tests of Achievement-Selected Clusters; Diagnostic Assessments of Reading (DAR); and the Test of Written Expression (TOWE) and found Student to perform in the low average to average range of achievement. Student presented with weaknesses in reading and writing, as well as in her ability to comprehend material independently. Difficulties were also noted when solving math word problems which “contained extraneous pieces of information.” Ms. D’ Andrea recommended services and listed a number of accommodations to be implemented in the classroom. (SE-4) These include:
– Present directions in simple, direct ways to ensure understanding;
– Provide directions in written format so that she can see it as well as hear it;
– Provide student opportunities to demonstrate knowledge verbally or in project format;
– Daily independent review of concepts covered in class to reinforce understanding;
– Frequent “checks” for understanding;
– Use of spell check device;
– Extended time on writing assignments, tests and quizzes.
– Pair visual with auditory;
– Provide exemplar to show what finished product should look like;
– Allow extra time for processing information and formulating responses. (SE-4)
10. Ms. D’ Andrea also observed Student in her language arts class at St. Bridget’s on March 13, 2008. (SE-6) During her 40-minute observation, she noted that Student exhibited off task behaviors, was distracted at times, and became self-conscious when she was asked to read aloud, and could not decode the words or read fluently. The observer noted that Student did not have all of her books and materials with her, and her locker was “completely disorganized.” (SE-6) Ms. D’ Andrea listed the following behavioral observations:
– Mispronouncing words from a reading selection
– Slower to complete assignments that her peers
– Playing with laser pen of the person sitting next to her
– Difficulty organizing task and activities (couldn’t find book, locker disorganized).
– Easily distracted by both internal and external stimuli (doodling on paper, doodling on self, talking to student next to her).
– Difficulty sustaining attention (fidgeting, slouching in seat, talking to neighbor). (SE-6)
11. On March 17, 2008, Richard Lacroix, CAGS, NCSP, Hollliston Public Schools, administered ten subtests of the WISC-IV, at the Robert Adams Middle School. (SE-5; Testimony of Ms.) As part of the evaluation, Mr. Lacroix also sought input from Student’s teachers at St. Bridget’s School. (Testimony of Ms. Denzer) He found Student’s cognitive ability to fall within the average range with weaknesses in processing speed, which in his opinion could be hindering Student’s “ability to quickly and efficiently produce written work and take notes in class. ” He also noted difficulty with test completion under timed conditions. (SE-5) Mr. Lacroix recommended supportive counseling to address self-esteem issues and to develop stress-reducing strategies. (SE-5) He also recommended review of Student’s medication to ascertain whether it was helping her focus and attention, and to ascertain whether it was having an impact on Student’s high level of anxiety. ( Id. )
12. All of the reports of the evaluation performed by Holliston were available two days after completion of the evaluations, and these reports were mailed to Parents prior to convening the Team. (Testimony of Ms. Denzer)
13. On March 20, 2008, Holliston forwarded to Parents an invitation to participate in a Team meeting scheduled for April 2008. (SE-1)
14. Student’s Team met on April 4, 2008, to discuss the result of the evaluations performed by Holliston. (SE-1; SE-7; Testimony of Ms. Denzer) Parents attended the Team meeting but did not dispute Holliston’s findings during the meeting. (Testimony of Ms. Denzer) Student was found to be eligible to receive special education services as her skills development was found to be negatively impacted by her attentional issues, difficulties staying on task, anxiety and low confidence levels. Holliston’s test results also showed Student to present with weaknesses in decoding and comprehension of content material. Small group specialized reading instruction was recommended to provide Student instruction in basic reading strategies. ( Id. )
15. The Team meeting notes reflect the following IEP recommendations:
Parents do not want to return to Holliston. Extend info. on 504’s.
Check Youth and Family Services for counseling; Parents to follow through with physician re: meds (medication.)
Consistency of medication will help her address educational needs.- perhaps switch to school.
Offer Read Naturally in AM before school.
Look to alternatives for writing- Smartboard.
Look to extended time for tests and written work.
Watch hexele levels in readers when focusing on comprehension strategies. (SE-7)
Holliston proposed an IEP to address the above-stated concerns. (SE-7)
16. Student’s proposed IEP covered the period from May 5, 2008 through May 4, 2009, at the Robert H. Adams Middle School. (SE-3) Since Parents declined public school placement and elected to have Student receive her education at St. Bridget’s, Holliston offered twice per week, before school, tutorial services for reading support to address reading comprehension and reading strategies. ( Id. ; Testimony of Ms. Denzer) Holliston offered to provide the services in Holliston or in an area close to the district but Parents wished for the services to be provided at St. Bridget’s School. (Testimony of Ms. Denzer)
17. On May 12, 2008, Parents requested an independent evaluation at public expense, via email. This request was prompted by Parents’ belief that Holliston’s evaluation was not appropriate. (SE-2; Testimony of Ms. Denzer) Parents request, received on May 13, 2008, did not specify the area to be addressed through the independent evaluation or the areas of Holliston’s evaluation with which they disagreed. (Testimony of Ms. Denzer)
18. On May 14, 2008, Holliston denied Parents’ request for an independent evaluation and notified Parents that it believed that Student had been thoroughly assessed in all areas of suspected disability. (SE-2) Holliston asserted that its evaluation was comprehensive and appropriate and met the requirements of law. The denial was forwarded to Parents via School District Notification of Decision Form in which Holliston informed Parents that it was mandated to file a request for hearing to demonstrate the appropriateness of its evaluation. Holliston also forwarded to Parents the Notice of Procedural Safeguards. (SE-2)
19. On May 20, 2008, Holliston filed its Request for Hearing challenging Parents’ right to the independent evaluation. (Testimony of Ms. Colarusso)
20. On June 2, 2008 Holliston forwarded Parents via Fedex, a copy of the letter it sent to the BSEA with Parents’ address information. (SE-9) This envelope was returned unopened to Fedex on July 15, 2008 and Fedex returned it to Holliston. (SE-9) Holliston’s exhibits and witness list were sent to Parents via express mail on July 14, 2008, and returned to Holliston marked “Refused”. (SE-10)
21. At the time of the Hearing Student’s IEP remained unsigned and Parents had not contacted Holliston further. (Testimony of Ms. Denzer) Parents also did not contact Holliston regarding the proceeding before the BSEA. (Testimony of Ms. Colarusso)
CONCLUSIONS OF LAW
Student is an individual with a disability falling within the purview of the Individuals with Disabilities Education Act1 (IDEA) and the state special education statute.2 As such, Student is entitled to a free appropriate public education (FAPE).3 Student’s eligibility status and entitlement to FAPE are not in dispute. In this matter Holliston seeks a determination by the BSEA that its evaluation of Student was comprehensive and appropriate, and that it is therefore, not responsible to fund the independent evaluation sought by Parents.
Upon consideration of the testimony and documents admitted in evidence, and relying on the Findings of Fact section of this decision, I conclude that the evidence presented by Holliston supports its claim that its evaluation is comprehensive and appropriate. In this regard, Holliston met its burden of persuasion pursuant to Schaeffer v . Weast , 126 S.Ct. 528 (2005)4 , My reasoning follows.
The IDEA5 regulations confer upon parents of disabled students the right to proceed with independent evaluations at public expense. 34 CFR 300.502. The regulations define independent evaluation as an
Evaluation conducted by a qualified examiner who is not employed by the public agency responsible for the education of the child in question. 34 CFR 300.502(a)(3)(i).
For purposes of this section, the term public agency is equivalent to local educational agency, that is, the particular school district responsible for the student in question. The right to an independent evaluation arises
If the parent disagrees with an evaluation obtained by the public agency, subject to the conditions in paragraphs (b)(2) through (4) of this section. 34 CFR 300.502(b)(1).
The federal regulations further provide that if the requisite conditions are met, the evaluation must be provided at public expense, that is,
that the public agency either pays for the full cost of the evaluation or ensures that the evaluation is otherwise provided at no cost to the parent, consistent with 300.103. 34 CFR 300.502(a)(3)(ii).
This means that the school district either pays the full cost of the evaluation sought by parent or that it offers parents an opportunity to obtain the desired independent evaluation by a provider who agrees to abide by the guidelines set by the state.6 States are left to regulate further consistent with federal law.
Additionally, federal regulations discourage unnecessary delays by school districts when a parent requests an independent evaluation by mandating that the school district either pay for the evaluation, or request a hearing when it believes that its evaluation is appropriate, or that the evaluation obtained by the parent failed to meet agency criteria. 34 CFR 300.502(b)(2).
Consistent with federal law and regulations, the Massachusetts special education regulations provide parents a right to independent evaluations as stated in 603 CMR 28.04(5)(a) which provides
1) Independent education evaluations. Upon receipt of evaluation results, if a parent disagrees with an initial evaluation or reevaluation completed by the school district, then the parent may request an independent education evaluation.
(a) All independent education evaluations shall be conducted by qualified persons who are registered, certified, licensed or otherwise approved and who abide by the rates set by the state agency responsible for setting such rates.7 Unique circumstances of the student may justify an individual assessment rate that is higher than that normally allowed.
In sum, both the federal and Massachusetts regulations provide that the right to an independent evaluation arises after the school district has first conducted an evaluation in the area parent disputes. Massachusetts Regulations further provides that
If the parent is requesting an independent education evaluation in an area not assessed by the school district, … the school district shall respond in accordance with the requirements of federal law. The district shall either agree to pay for the independent education evaluation or within five school days, proceed to the Bureau of Special Education Appeals to show that its evaluation was comprehensive and appropriate. (Emphasis added) If the Bureau of Special Education Appeals finds that the school district’s evaluation was comprehensive and appropriate, then the school district shall not be obligated to pay for the independent education evaluation requested by the parent. 603 CMR 28.04(5)(d).
In the instant case, Holliston complied with Parents initial request for school district evaluation, requested consent for the evaluations, completed the evaluations, convened the Team and issued an Individual Educational Program (IEP) within the timelines required under federal and Massachusetts special education law and regulations. (See Facts 4 through 16)
The evidence shows that Holliston received Parents’ request for an independent educational evaluation on Tuesday, May 13, 2008 and five school days later denied Parents’ request and filed a request for hearing with the BSEA, consistent with 603 CMR 28.04(5)(d), on the basis that its evaluation was comprehensive and appropriate. (Testimony of Ms. Colarusso)
The evaluation reports submitted by Holliston are consistent with the areas identified in Holliston’s request for consent to evaluate. These evaluations and observation sought to gain knowledge regarding Student’s suspected areas of need and to address the concerns raised by Parents and Student’s teachers at St. Bridget’s. (SE-5; SE-6; SE-7; SE-8) Ms. D’ Andrea and Mr. Lacroix performed standardized testing inclusive of the Woodcock-Johnson III Tests of Achievement-Selected Clusters; Diagnostic Assessments of Reading (DAR); and the Test of Written Expression (TOWE), ten subtests of the WISC-IV, and sought input from Student’s teachers at St. Bridget’s School, and Ms. D’ Andrea conducted a 40-minute observation of Student during her language arts class. (SE-4; SE-5; SE-6) Cognitive ability, learning style and strengths were appropriately assessed. Ms. D’ Andrea and Mr. Lacroix made recommendations consistent with the results of their evaluations, which proposed to address Student’s difficulties given her diagnosis of Attention Deficit Disorder. (SE-3; SE-4; SE-5; SE-6)
In sum, Student was found to require specialized instruction or services to address a documented health disability that impacted negatively upon her ability to attend to instruction, and read with meaning. Weaknesses were also found with phonemic decoding skills and confidence levels, and anxiety also impacted her performance. (SE-3; SE-4; SE-5; SE-6) Holliston’s evaluation resulted in a finding of eligibility and the drafting of an IEP which to date has not been signed by Parents. (SE-3) According to Ms. Colarusso, who has thirty years of experience in special education, Holliston’s evaluation was comprehensive and appropriate. (Testimony of Ms. Colarusso) Additionally, the uncontested testimony and documents admitted in evidence show that Parents did not clarify with which area of Holliston’s evaluation they disagreed when they requested the publicly funded independent evaluation. Furthermore, Parents did not clarify their position even after Holliston sought to gain clarification in this regard. (Testimony of Ms. Colarusso, Ms. Denzer) Parents also did not submit a response to the request for hearing consistent with the BSEA Notice of Hearing, did not participate in the hearing or otherwise challenge or rebut Holliston’s assertions. Holliston met its burden of persuasion in showing that its evaluation was comprehensive and appropriate. As such, it is not responsible to provide public funding for the independent evaluation sought by Parents.
ORDER:
1. Holliston’s evaluation of March 2008 is comprehensive and appropriate.
2. Holliston is not responsible to provide public funding for the independent evaluation sought by Parents.
So Ordered by the Hearing Officer,
_____________________________________
Rosa I. Figueroa
Dated: August 15, 2008
1
20 USC 1400 et seq .
2
MGL c. 71B.
3
MGL c. 71B, ss. 1 (definition of FAPE), 2, 3.
4
Schaeffer v . Weast , 126 S.Ct. 528 (2005) places the burden of proof in an administrative hearing on the party seeking relief.
5
See 20 USC 1415(d)(2)(A).
6
When a parent requests an independent evaluation, the federal regulations further require school districts to provide parents with “… information about where an independent educational evaluation may be obtained, and the agency criteria applicable for independent educational evaluations as set forth in paragraph (e) of this section”, to ensure that parents are able to select providers who act in concert with state mandates . 34 CFR 300.502.
7
In Massachusetts the agency responsible for setting the rates for independent evaluations is the Division of Health Care Finance and Policy.