Hudson Public Schools – BSEA #10-2914 and 10-4061



<br /> Hudson Public Schools – BSEA #10-2914 and 10-4061<br />

COMMONWEATLH OF MASSACHUSETTS

BUREAU OF SPECIAL EDUCATION APPEALS

In re: Hudson Public Schools

BSEA# 10-2914 and # 10-4061

RULING ON HUDSON’S MOTION FOR SUMMARY JUDGMENT

On January 7, 2010, Parents filed two Hearing Requests with the Bureau of Special Education Appeals (BSEA) against the Hudson Public Schools (Hudson). Parents requested full reimbursement for an Independent Educational Evaluation (IEE) (specifically, a cognitive evaluation) for each of their two sons. By agreement of the parties, the two Hearing Requests were consolidated since each raised the identical issue.1

On January 19, 2010, Hudson filed a motion for summary judgment, to which Parents filed a written response. A telephonic motion hearing took place on January 29, 2010.

Hudson has offered to fund each IEE but has agreed to do so only at rates set by the Division of Health Care Finance and Policy (DHCFP). Hudson has filed an affidavit, unrebutted by Parents, indicating that area hospitals (including Children’s Hospital, Franciscan Hospital for Children, Mass. General Hospital, and U. Mass. Medical Center) accept DHCFP rates for purposes of conducting the requested cognitive evaluation. Parents have identified their own evaluator (ICCD Partners) which will only conduct a cognitive evaluation at a higher rate of $3,100.

This dispute presents the question of whether Hudson must pay the higher rate of $3,100 for each evaluation or, alternatively, is responsible only to fund an IEE that is conducted by an evaluator who abides by the rate set by DHCFP.

DHCFP is a state agency responsible for setting rates for purposes of IEEs. Its rates are referenced within the following Massachusetts special education regulations:
(5) 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. Unique circumstances of the student may justify an individual assessment rate that is higher than that normally allowed.2

Parents take the position that the above-quoted regulatory language does not apply. Therefore, Parents do not seek to fall within the “unique circumstances” exception at the end of the above-quoted regulatory language, nor have Parents alleged facts that would permit them to fall within this exception.

Parents argue that they have made their request for two IEEs under the federal special education statute and regulations, pursuant to which Hudson must fund the full cost of the particular evaluator chosen by them to conduct the IEEs.3

The relevant federal regulatory language relied upon by Parents is as follows:
(a) General . (1) The parents of a child with a disability have the right under this part to obtain an independent educational evaluation of the child, subject to paragraphs (b) through (e) of this section.

(2) Each public agency must provide to parents, upon request for an independent educational evaluation, 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.

(3) For the purposes of this subpart–

(i) Independent educational evaluation means an evaluation conducted by a qualified examiner who is not employed by the public agency responsible for the education of the child in question; and

(ii) Public expense means 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 .4

Hudson concedes that these federal regulations apply, but Hudson correctly points out that an operative principle of these federal regulations, as they apply to the instant dispute, is to ensure that an independent evaluation is “provided at no cost to the parent”.5 Hudson takes the position that limiting Parents’ choices to evaluators who abide by DHCFP rates does not preclude Parents from obtaining an IEE without cost to them. And, accordingly, the above-quoted state regulations are not inconsistent with federal regulations in the instant dispute, and therefore may properly limit Parents’ choice of evaluators.

Hudson’s arguments based upon the above-quoted regulations are persuasive, except that they do not address the following additional language regarding a parent’s right to an IEE:
(e) Agency criteria . (1) If an independent educational evaluation is at public expense, the criteria under which the evaluation is obtained, including the location of the evaluation and the qualifications of the examiner, must be the same as the criteria that the public agency uses when it initiates an evaluation, to the extent those criteria are consistent with the parent’s right to an independent educational evaluation.

(2) Except for the criteria described in paragraph (e)(1) of this section, a public agency may not impose conditions or timelines related to obtaining an independent educational evaluation at public expense .6

Thus, although there is nothing explicit within federal special education law or regulation that gives Parents the right to choose their own evaluator irrespective of the cost of the evaluation, the above-highlighted federal regulatory language precludes Hudson from imposing any conditions related to obtaining an IEE at public expense. And, based solely upon the words of the federal regulations, Hudson’s limitation on whom Parents may choose as their evaluator is, arguably, such a prohibited “condition”.

This presents a difficult question of regulatory interpretation. I have found no court decisions that provide useful guidance on this issue, and neither party cited to or relied upon any judicial authority.7 The federal special education statute does not appear to have comparable language.8

However, there is guidance from the U.S. Department of Education. Within its discussion of comments on its own regulations, U.S. D.O.E. appears to have interpreted the regulations to allow the kind of limitation found within the Massachusetts special education regulations. The relevant parts of the U.S. D.O.E. comment and discussion are as follows:

Comment : One commenter requested clarification regarding a public agency’s right to limit the amount it pays for an IEE and asked whether a public agency can place limits on the frequency of an IEE (e.g., a single IEE in an evaluation cycle or in a child’s school career).

Discussion : It is the Department’s longstanding position that public agencies should not be required to bear the cost of unreasonably expensive IEEs. This position is reflected in the regulatory provisions. Section 300.502(a)(2) provides that if a parent requests an IEE at public expense, the public agency must provide the parent with information about where an IEE may be obtained and the agency criteria applicable for IEEs. In order for an evaluation to be at public expense, §300.502(e)(1) requires that the criteria under which an IEE is obtained, including the location of the IEE and the qualifications of the examiner, be the same as the criteria that the public agency uses when it initiates an evaluation, to the extent that those criteria are consistent with a parent’s right to an IEE. In addition, §300.502(e)(2) states that, except for the criteria described above, a public agency may not impose conditions or timelines related to obtaining an IEE at public expense.

Although it is appropriate for a public agency to establish reasonable cost containment criteria applicable to personnel used by the agency, as well as to personnel used by parents, a public agency would need to provide a parent the opportunity to demonstrate that unique circumstances justify selection of an evaluator whose fees fall outside the agency’s cost containment criteria.9

Because the relevant federal regulations are not entirely clear on their face and in the absence of judicial guidance, I defer to the above interpretation of the U.S. D.O.E., as well as the Mass. Department of Elementary and Secondary Education’s interpretation through its own special education regulations quoted above. I also note that a previous BSEA decision has resolved the identical issue in favor of the school district.10 I am aware of no BSEA decisions to the contrary.

For these reasons, I find that the limitations imposed on Parents by Hudson in the instant dispute (that is, requiring Parents to choose an independent evaluator among several who accepts DHCFP rates for purposes of conducting a cognitive evaluation) will allow Parents to obtain independent cognitive evaluations for their two sons at no cost to Parents, that these limitations are required by state special education regulations, and that the limitations do not abrogate federal law or regulations. Thus, I conclude that these limitations may be imposed upon Parents’ IEEs in the instant dispute.

Accordingly, Hudson’s motion for summary judgment is ALLOWED , and these two consolidated cases are DISMISSED .

By the Hearing Officer

_______________________________

William Crane

Dated: February 2, 2010

Dismissal by the Bureau of Special Education Appeals (BSEA or Bureau) is a final action and is not subject to further review by the BSEA. Because 20 U.S.C. s.1415(i)(1)(A) requires the BSEA decision to be final and subject to no further agency review, the BSEA cannot permit motions to reconsider or to re-open a BSEA decision once it is issued. Any party aggrieved by a decision of the Bureau of Special Education Appeals may file a complaint in the state superior court of competent jurisdiction or in the District Court of the United States for Massachusetts, for review of the Bureau decision. 20 U.S.C. s. 1415(i)(2). An appeal of a Bureau decision to state superior court or to federal district court must be filed within ninety (90) days from the date of the decision. 20 U.S.C. s. 1415(i)(2)(B).


1

In the instant dispute, Parents were pro se , and Hudson was represented by attorney Nancy Nevils.


2

603 CMR 28.04.


3

In support of this argument, Parents rely upon In re: Hudson Public Schools v. Sam , BSEA # 09-3499, 15 MSER 133 (2009). I have reviewed this decision and have concluded that it does not address the issue in dispute in the present case.


4

34 CFR 300.502 (emphasis supplied).


5

34 CFR 300.502(a)(3)(ii).


6

34 CFR 300.502 (emphasis added).


7

The only relevant decision that I found was Raymond S. v. Ramirez , 918 F.Supp. 1280 ( N.D.Iowa 1996) (upholding a limitation that parents would be allowed to obtain only the cost of the IEE that was not covered by parents’ private insurance). I did not find the court’s analysis to be useful.


8

See 20 U.S.C. 1415(b)(1) and (d)(2)(A).


9

71 Fed. Reg. 156, pp. 46689-90 (August 14, 2006).


10

In Re: Medford Public Schools , BSEA # 09-2774, 15 MSER 62, 63 (2009).


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