In Re: Ishmael1 & Duxbury Public Schools
BSEA# 07-2419C
DECISION
This Decision is issued pursuant to M. G. L. c. 71 B, 20 U. S. C. § 1400 et seq ., 29 U. S. C. 794, the regulations promulgated under those statutes, and BSEA Hearing Rule XV. A hearing was held in the above-entitled matter on September 5, 2007, at the offices Alden School in Duxbury, MA. Present for the hearing were:
Parent
Deborah Covini Admininstrator of Special Education, Duxbury Public Schools
Susan Skeiber Superintendent, Duxbury Public Schools
Colby Brunt Attorney, Duxbury Public Schools
Elaine Hurley Court Reporter
Lindsay Byrne BSEA\Hearing Officer
The official record of the hearing consists of documents submitted by the Parent marked P-1 and P-2, and P-4 through P-12; documents submitted by the School marked S-1 through S-5; and approximately 1½ hours of recorded testimony and argument. The parties made oral closing arguments at the hearing on September 5, 2007 and the record closed on that date.
Issue
1. Whether the Duxbury Public Schools has substantially complied with the Decision of the BSEA issued on June 13, 2007 in Matter No. 07-2419?
Background
On July 25, 2007, the Parent requested a hearing asserting that Duxbury had failed to implement the June 13, 2007 Decision in BSEA #07-2419. That Decision is incorporated herein by reference in its entirety2 . The predicate Decision found that:
1. A comprehensive psychiatric evaluation of the Student is necessary in order for the School to discharge its obligation to provide a free, appropriate public education to the Student;
2. The Parent failed or refused to consent to reasonable school proposals to secure an appropriate, neutral, expert psychiatric evaluation of the Student; and therefore
3. The School could lawfully proceed to conduct the proposed psychiatric evaluation of the Student without parental consent in order to fulfill its duties under federal and state special education laws.
The operative facts of the Parent’s compliance complaint are not in dispute and may be briefly summarized:
Findings of Fact
1. The Decision in BSEA #07-2419 states:
Duxbury may proceed, without the parent’s consent, to conduct the comprehensive psychiatric evaluation of the Student as outlined by Dr. Clark.
The Decision was issued on June 13, 2007. There were fewer than five school days remaining in the 2006-2007 school year.
2. On June 18, 2007, Duxbury wrote to the Parent providing Dr. Clark’s contact
information and requesting that she make arrangements for the psychiatric evaluation authorized by the BSEA. (S-1, P-6)
3. The Parent responded by letter dated July 14, 2007. In the letter the Parent reiterated her refusal to consent to the proposed psychiatric evaluation. In order to secure any parental cooperation, the Parent wrote, Duxbury and Dr. Clark would have to agree in writing to 24 conditions, including: public payment for privately secured psychiatric treatment; limited access to relevant mental health documentation; no evaluator access to the Student’s school records; provision of copies of all correspondence between the School District and its attorney to the Parent; parental approval of any evaluation report before its release to the School; specific written consent of the Parent to each interaction of the evaluator with the Student, his mental health treatment providers, and school personnel; parentally designed schedules and content for provider, staff, Team and training meetings into the 2008-2009 school year. (S-2, P-1)
4. In a letter to the Parent dated July 24, 2007, Duxbury clarified that it would be financially responsible for all costs associated with the proposed psychiatric evaluation and that Dr. Clark would provide a written report to the Parent and present it at a Team meeting. Duxbury alerted the Parent that it intended to proceed with the evaluation as outlined in the BSEA Decision in #07-2419. (S-3, P-7) The Parent requested a compliance hearing on July 25, 2007 (Administrative Record)
5. In an affidavit dated August 29, 2007, Dr. Clark reports that the Parent had not contacted his office to schedule an appointment. (S-5)
6. The Parent testified at the compliance hearing that she will not cooperate with the proposed psychiatric evaluation unless the School agrees to all of the conditions outlined in her July 24, 2007, letter. She further stated that she would not consent to the release of any of the Student’s medical or psychiatric records to Dr. Clark under any conditions and that she would not schedule an appointment with Dr. Clark. The Parent asserted that the School was not in compliance with the Bureau’s Order in BSEA #07-2419 because it had not yet begun the psychiatric assessment and that the delay in securing the evaluation was denying the Student a free, appropriate public education. (Parent)
7. Duxbury had no access to the Student during the summer vacation.
Conclusions
Based on the facts recited above I find that Duxbury Public Schools has substantially complied with the BSEA Decision of June 13, 2007 in this matter. By that Decision Duxbury was authorized to conduct its proposed psychiatric evaluation of the Student without agreeing to any preconditions imposed by the Parent. In its letters to the Parent of June 18 and July 24, 2007, Duxbury gave the Parent the necessary information and assurances to permit the Parent to take appropriate action consistent with the Decision, including arranging an initial appointment at a time convenient to the Parent and Student during the summer. That the Parent failed to do so is not attributable to any action or inaction on Duxbury’s part.
Now that the Student has returned to Duxbury High School, the district has the opportunity to propose an alternative evaluation site or schedule that may avoid the access issues that prevented the evaluation from proceeding during the summer break. As Dr. Clark pointed out in the original hearing, however, without the cooperation of the custodial parent in the evaluation process, including the unconditional release of the Student’s treatment records, the evaluation results are not likely to be sufficiently meaningful or accurate to support reasonable intervention planning for Ishmael by the School. And as the Parent pointed out in the Compliance Hearing, the BSEA cannot require any action on her part to aid the School in the evaluation process. It appears, therefore and regrettably, that the School may have to look to another forum to secure, or dispense with, parental cooperation with this necessary special education evaluation. At this point Duxbury is appropriately meeting its procedural and substantive obligations to Ishmael under federal and state special education laws.
Order
1. Duxbury is in compliance with the original Decision in this matter issued on June 13, 2007;
2. Any delay in securing the comprehensive, independent psychiatric evaluation of the Student ordered in the June 13, 2007 Decision in BSEA #07-2419 is attributable to the custodial parent.
Lindsay Byrne, Hearing Officer
September 25, 2007
1
“Ishmael” is a pseudonym selected by the Hearing Officer to protect the privacy of the Student in documents available to the public.
2
The original Decision may be found at www.doe.mass.edu/BSEA and 13 MSER 223 (2007).