COMMONWEALTH OF MASSACHUSETTS
Bureau of Special Education Appeals
In Re: Ipswich Public Schools
BSEA # 07-0962
RULING ON MOTION FOR COMPLIANCE WITH DECISION
This is a Ruling on the Parent’s Motion to Order Compliance with the Decision issued in this case on November 28, 2006.
PROCEDURAL HISTORY
On November 28, 2006, after a full evidentiary hearing, I issued a decision (“ Decision ”) which ordered, in pertinent part:
Ipswich shall immediately implement the 2006-2007 IEP that was produced in September 2006, with the following modifications:
Upon receipt of appropriate medical documentation and/or releases from Parent:
1. Ipswich shall propose a formal evaluation of Student’s feeding issues, shall convene a TEAM meeting to address same, and shall offer an IEP amendment, if appropriate, to incorporate goals, objectives and services relative to feeding;
2. Ipswich shall, with input from Parent, Student’s health care providers and the school nurse, develop an asthma care plan for managing Student’s asthma in school.
On or about December 5, 2006, Parent filed an appeal of the Decision in the Superior Court for Essex County. On or about January 24, 2007, Parent filed a document which I treated as a Motion to Order Compliance under Rule XV of the Hearing Rules for Special Education Appeals. (Hearing Rules). On January 26, 2007 I issued an order directing Parent to specify the areas of alleged non-compliance by February 5, 2007, and directing Ipswich to respond seven days later. Parent filed a document purporting to provide such clarification on February 5, 2007. The School filed a responsive document on February 28, 2007. A compliance hearing was held on March 13, 2007 at the office of the BSEA in Malden. Ipswich was represented by counsel, and Mother appeared pro se. Both parties had an opportunity to examine and cross-examine witnesses and present documentary evidence. At the close of the evidence, both parties stated that they wished to settle this matter informally, either via mediation or otherwise. On or about June 12, 2007, Parent gave written notice that such settlement attempts had not resolved the subject matter of her Compliance Motion, and that she sought a decision on the compliance hearing.1
The evidentiary record in this proceeding consists of Parent’s exhibits P-1 through P-4, School exhibits S-1 through S-3, and Joint Exhibit J-1, and approximately three hours of taped and stenographically recorded testimony. Additionally, I take administrative notice of the Decision of November 28, 2006. At the close of the evidence, the parties indicated, on the record, that they wished to
Those present for all or part of the proceeding were:
A.L. Friend of Parent
Kristine Glennon Speech/language therapist, Ipswich Public Schools2
Margaret Madeiros Program Manager, Ipswich Public Schools
Diana Minton Dir. Pupil Personnel Svcs., Ipswich Public Schools
Laurie Smith-Michaels Educational Consultants of New England (ECN)
Parent, pro se
Mary Gallant, Esq. Attorney for Ipswich Public Schools
Elaine Hurley Court Reporter
ISSUE
The issue for hearing is whether Ipswich has fully or partially complied with the Order contained on Page 20 of the Decision of November 28, 2006 as follows:
1. Whether Ipswich has implemented the 2006-2007 IEP that was produced on September 22, 2006.
2. Whether, upon receipt of appropriate medical documentation and releases from Parent, Ipswich has3
(a) proposed a formal evaluation of Student’s feeding issues, convened a TEAM meeting to consider such evaluation, and offered an IEP amendment, if appropriate, to incorporate goals, objectives and services relative to feeding;
3. If Ipswich has completely or partially failed to comply with (1) and/or (2), above, whether facts exist which excuse such non-performance;
4. What remedy should be ordered in the event of a finding of full or partial noncompliance by Ipswich, if such non-compliance is not excused by other facts or circumstances.
5. What is the effect, if any, of the Parent’s appeal of December 5, 2006.
Position of Parent :
Ipswich has failed to implement the IEP for 2006-2007 because it failed to provide the full complement of speech-language, occupational therapy, physical therapy, and integrated preschool services set forth in the IEP. Parent has not signed this IEP because it contains “untrue language.” This is not an excuse for Ipswich’s non-implementation of the IEP, however, because even without Parent’s signature, Ipswich should have met with Parent to plan implementation of services.
Ipswich also has failed to propose or conduct a feeding evaluation. Parent’s refusal to provide Ipswich with releases for all of Student’s medical records does not excuse Ipswich’s non-performance, as Parent is willing to provide specific records and/or limited releases that a feeding specialist deems necessary to conduct the evaluation.
Ipswich has implemented an asthma management plan to Parent’s satisfaction.
Position of School
Parent has refused to fully or partially accept the 2006-2007 IEP; therefore, Ipswich need not, and actually cannot implement it.
Parent has refused to provide releases for medical records and access to information that are necessary to propose and conduct a feeding evaluation. Ipswich cannot comply with the Order until it receives such releases.
SUMMARY OF EVIDENCE
1. The original decision in this matter, which was issued on November 28, 2006, is incorporated by reference in its entirety, in this Ruling.
2. As of the Hearing date in this matter, Parent had not signed the IEP produced in September 2006; (Ex. J-1) i.e., Parent had neither accepted nor rejected the IEP, fully or in part. (Parent, Madeiros)
3. In a letter dated December 6, 2006, and in various conversations, Ipswich has informed Parent that it is ready, willing and able to implement the IEP. Ipswich’s representatives so testified at the compliance hearing. (S-2, Madeiros)
4. Parent has repeatedly stated that she cannot sign the September 2006 IEP because it contains “untrue statements,” and that an attorney has advised her not to sign it for this reason. (Parent)
5. Parent has not specifically identified the allegedly untrue statements in the IEP that preclude her signature.
6. Parent has not stated why she cannot or will not accept the services in the IEP with which she agrees, while rejecting the parts of the IEP with which she disagrees, other than to refer to legal advice she has received. (Parent)
7. Parent has not named the attorney who purportedly advised her not to sign Student’s IEP, and no attorney has ever appeared on Parent’s behalf in this matter.
8. Ipswich has taken the position, on the other hand, that notwithstanding the November 28, 2006 Decision ordering implementation of the IEP, it cannot do so unless Parent formally accepts it, in writing, fully or in part. In particular, licensed service providers (such as the physical therapist) were concerned about the impact on their licensure should they provide services in the absence of an accepted IEP. (Madeiros).
9. As stated in the Decision, the IEP issued on or about September 22, 2006, covering the period from September 22, 2006 to June 30, 2007, admitted as Exhibit J-1 for purposes of the Compliance hearing, specified the following services on the Service Delivery page:
· Grid A (Consultation) speech/language: 2×60 minutes/week; ABA Home/School from ECN: 2×60; physical therapy: 1×30; Fine Motor/Home/School—1×30.
· Grid B: (Direct service, general classroom): physical therapy group—1×30; classroom—4×5 mins. Integrated preschool.
· Grid C: (Direct Service, other settings): communication (speech/language therapy)—1×60 school, 1×60 home; ABA—5×2 hrs. school, 2:1 ENC and Ipswich; ABA (1:1 Ipswich)—5×1.5 hrs.; ABA (home) ECN—10×1 hour; sensory/fine motor—1×30 school, 1×60 home.
10. The IEP also provides for numerous accommodations, including but not limited to gradual introduction of another preschool child into Student’s 1:1 ABA space at school to begin the integration process, a Board Certified Behavioral Consultant (BCBA) to create and monitor Student’s ABA program and provide bi-monthly written feedback to Parent; monitoring of noise and distraction; a home-school communication book, and individualized attention at all times. (J-1)
11. If Student had been receiving services pursuant to the IEP, he would have been in the school building, receiving 1:1 services with gradual attempts at integration with the preschool, from approximately 8:30 AM until 1:30 PM, five days per week. Student also would have received the home-based services stipulated in the IEP. (J-1, Madeiros)
12. From the date of the decision in this matter, Student’s services have been based not on the foregoing IEP but on a mediated agreement executed in May 2006, as well as ongoing informal discussions between Parent and Ipswich. (Parent, Glennon, Madeiros) These services have consisted of the following (times are approximate):
· Grid A: Speech/language—2×60; ABA Home/School (ECN)—more than 2×60; PT—none, OT—1×60
· Grid B: No services
· Grid C: speech/language and OT co-treat—2×30 in school, 1×60 at home; ABA (1:1, ECN, at school)—5×2 hrs.; ABA (2:1, ECN/Ipswich, at school)—none; ABA (1:1, ECN, at home)—4×2.5 hours.
13. During the period at issue here, Student attended school for about two hours per day, from approximately 9:00 to 11:00 AM.4 His time in school was spent with individual therapies (speech/language, OT, and ABA); he was not taught with or exposed to other children because Parent had not accepted the IEP providing for this experience. (J-1, Parent, Glennon, Madeiros)
14. In sum, the direct services Student has missed because Ipswich has not implemented the IEP have included physical therapy, approximately 15 hours per week of in-school time (including gradual exposure to children from the integrated preschool and group PT), and 7.5 hours per week of 2:1 ABA services. (Under the IEP, Student would have received a total of 27.5 hours of direct ABA services; Student actually was receiving 20 hours per week of ABA). (J-1)
15. Ipswich has not proposed or conducted a feeding evaluation of Student because it has not received Parent’s authorization to obtain medical information that it deems necessary to do so. (Madeiros) On or about December 21, 2006, via a letter from counsel, Ipswich asked Parent to execute releases allowing Ipswich to speak with Student’s medical providers and also to obtain Student’s entire medical record. (S-2, Madeiros) Ipswich is ready and willing to obtain a feeding evaluation and develop a comprehensive feeding plan upon receipt of such releases from Parent. (S-2, Madeiros)
16. Parent has declined to execute any releases, stating that Ipswich does not need broad access to Student’s physicians or medical records in order to evaluate Student’s feeding difficulties. Parent has further stated that she already has provided Ipswich with adequate medical information. If the evaluator needs specific additional information, Parent is willing to obtain that information and forward it to the evaluator. As of the hearing date, Parent has not been willing to sign Ipswich’s medical releases. (Parent)
17. Ipswich asserts that it needs ongoing communication with Student’s medical providers in order to propose, develop, and implement a feeding evaluation and plan. Among other things, Ipswich claims it would need information about possible medical impediments to normal eating, food allergies, and the like. (Glennon, Madeiros, Smith-MIchaels) Additionally, in another case, the specialist who conducted a feeding evaluation wanted that child’s entire medical record, and Ipswich wants to be prepared to provide it. Ipswich states that it requests access to physicians as well as a copy of a child’s complete medical record in all cases where it conducts or obtains feeding evaluations. In requesting broad releases from Parent, Ipswich states that it is following its usual policy. (Madeiros)
18. Ipswich and ECN representatives believe that a more circumscribed release would not accomplish the necessary purpose. (Madeiros, Smith-Michaels)
19. There are several physicians and nutritionists with whom Ipswich works to evaluate feeding problems as well as to develop and implement comprehensive feeding programs for students who need them. Ipswich has not identified any particular individual to conduct an evaluation of Student. (Madeiros)
FINDINGS AND CONCLUSIONS
Pursuant to Rule XV of the Hearing Rules for Special Education Appeals, “[a] party contending that a decision of Special Education Appeals is not being implemented may file a motion requesting Special Education Appeals to order compliance with the decision.” Id. Rule XV further provides as follows:
The motion shall set out the specific areas of alleged non-compliance. The H.O. may convene a hearing at which the scope of inquiry will be limited to facts bearing on the issue of compliance, facts of such nature to excuse performance, and facts bearing on a remedy. Upon a finding of noncompliance, the Hearing Officer may fashion appropriate relief and/or refer the matter to the Legal Office of the Commonwealth of Massachusetts DOE for enforcement. (Id.)
Here, there is no dispute that Ipswich neither implemented the IEP issued in September 2006 (J-1), nor proposed or conducted a feeding evaluation as ordered in the Decision issued on November 28, 2006. Ipswich contends that Parent’s failure to (1) accept the IEP fully or in part and (2) execute medical releases excuse Ipswich’s non-performance. The sole issues here are whether Ipswich’s performance of either or both directives in the decision was excused by Parents actions or failures to act.
Non-Implementation of IEP
Ipswich contends that it is not only excused but prohibited from implementing the IEP of June 20, 2006 in the absence of Parent’s written acceptance, notwithstanding the Decision of November 28, 2006, which explicitly orders Ipswich to do so. In particular, licensed professionals working for Ipswich (for example, the physical therapist), were concerned that their licensure could be jeopardized were they to provide services without a signed IEP authorizing them to do so.
The issue of whether or not Ipswich could implement the IEP seemingly would turn on whether the Decision effectively overrides the Parent’s failure or refusal to consent to the services contained in the IEP. I need not reach this issue, however, because, in the instant case, the Parent has appealed the Decision. As a result of the pending appeal, the relevant law is that governing a child’s placement pending an appeal, or “stay put,”
One of the cornerstones of the IDEA is that “during the pendency of any [administrative or judicial] proceedings… unless the State or local educational agency and the parents otherwise agree, the child shall remain in the then-current educational placement…” 20 USC §1415(j); Verhoeven v . Brunswick School Committee , 207 F.3d 1 (1 st Cir. 1999) The purpose of this provision is to preserve the status quo, and avoid unnecessary disruption to a child’s placement while a dispute is ongoing, by maintaining the child in the last placement upon which the parents and school district agreed , before the dispute(s) arose. The student must remain in the “stay put” placement until the dispute is resolved, unless the parents and school district agree to a different IEP or placement pending appeal.
Applying this principle to the instant case, Student’s “stay put” placement and services consist of the most recent placement and services upon which Ipswich and the Parent agreed. Here, it is undisputed that the only agreed upon package of placement and services was embodied in the mediation agreement of May 2006. Were Ipswich to implement the IEP issued in September 2006 without Parent’s explicit agreement, it would be violating the principles of “stay put.”
Parent could have indicated her agreement to some or all of the services offered in the IEP by signing the IEP, and clearly indicating which services she had accepted (even if she disagreed with parts of the IEP) The accepted services then would constitute some or all of Student’s “stay put” services, and Ipswich would be obligated to provide them pending appeal. She also could have consented, on a limited basis, to all or part of the IEP for the period pending appeal. Parent elected not to take such action, however; therefore, Ipswich is excused for its non-implementation of the September 2006 IEP.
Feeding Evaluation
The parties agree that Student needs a feeding evaluation, but have reached an impasse over the scope of medical information that Parent must make available to Ipswich before Ipswich is required to comply with the Order.
To resolve this impasse, and effect the purposes of the Order, I clarify that the “appropriate medical releases and documentation” that the Parent must provide means medical releases and/or documentation that is specifically designated by the evaluator(s) identified by the School as necessary to propose and conduct the feeding evaluation of Student.
The School has not identified a professional or professionals to conduct the evaluation, or introduced evidence from such professional as to the type and amount of medical or other background information needed to propose and conduct a feeding evaluation. It is reasonable to require Parent, at least at this stage, to provide only so much information as the evaluator needs to propose and conduct the assessment that both parties believe is needed, rather than to defer even identifying an evaluator until the Parent grants blanket permission for School personnel to communicate with Student’s treating physicians or have access to his entire medical record.
By the Hearing Officer
____________________________
July 27, 2007
1
Parent’s June 12 correspondence contains multiple, detailed statements regarding ongoing discussions with Ipswich over Student’s program; however, these are not at issue here; Ipswich does not dispute that it has not implemented the IEP issued in September 2006.
2
With the parties’ agreement, Ms. Glennon testified by speaker phone.
3
The Decision also required Ipswich to develop an asthma management plan. Parent states that Ipswich has complied with this portion of the Decision to her satisfaction.
4
For some months prior to the November 28 decision, Student had attended speech therapy sessions in school from 8:30 to 9:00 AM on Tuesdays. On November 29, 2006, after discussions with the therapists over Student’s alleged problems with this schedule, Parent stopped bringing Student to these sessions. As of the hearing, Parent and the therapists were attempting to adjust the schedule. (Parent, Glennon):