James and Hampden Wilbraham Regional School District – BSEA # 05-4878



<br /> James and Hampden-Wilbraham Regional School District – BSEA # 05-4878<br />

COMMONWEALTH OF MASSACHUSETTS

Bureau of Special Education Appeals

In re: James1 and Hampden-Wilbraham RSD – BSEA# 05-4878

RULING ON HAMPDEN-WILBRAHAM REGIONAL SCHOOL DISTRICT’S SECOND MOTION TO DISMISS WITH PREJUDICE

This ruling is rendered pursuant to M.G.L. Chapters 30A and 71B; 20 U.S.C. §1400 et seq .; 29 U.S.C. §794; and the regulations promulgated under each of these statutes.

A Motion Hearing in the above-entitled matter was held on May 16, 2006 at Catuogno Court Reporting in Worcester, MA.

Those in attendance were:

Thomas Philpott Director of Student Services, Hampden-Wilbraham

Regional School District (HW)

Bruce Ecker Psychologist

Peter Smith Attorney for HW

Darlene Coppola Court Stenographer

Raymond Oliver Hearing Officer, Bureau of Special Education Appeals

HISTORY/STATEMENT OF THE CASE

On April 29, 2005 Parents filed a Hearing Request with the Bureau of Special Education Appeals. On August 17, 2005 a Motions Hearing was held and on September 7, 2005 the Hearing Officer issued several Rulings and an extensive Order authorizing the Hampden-Wilbraham Regional School District (HW) to conduct a comprehensive evaluation of James, setting conditions, and establishing timelines for the evaluation, team meeting, and further BSEA proceedings. Please refer to DECISION ON MOTIONS issued on September 7, 2005 (9/7/05 DOM ) which is hereby incorporated by reference into this

RULING .

On February 15, 2006 the Hearing Officer issued RULINGS ON MOTIONS which decided additional motions filed by both parties. Please refer to RULINGS ON MOTIONS issued February 15, 2006 (2/15/06 ROM ) which is hereby incorporated by reference into this RULING . Included in this 2/15/06 ROM was the Hearing Officer’s RULING ON HW’S MOTION TO DISMISS THIS APPEAL . In brief, the Hearing Officer found:

Given the 9/7/05 DOM Order #2 cited above; and given Parents’ and their then Attorney’s letters cited above; Parents and their then Attorney have clearly violated the Hearing Officer’s Order not to interfere with the assessment and to fully cooperate with all assessment procedures. The above-cited letters can have no purpose other than to interfere with Dr. Ecker’s evaluation of James. These letters attempt to impose terms and conditions on the neuropsychological/psychoeducational evaluation sought by HW and ordered by the Hearing Officer; to intimidate, harass and threaten HW’s chosen evaluator; and to insure that such evaluation will not take place.

The Hearing Officer found Parents’ actions in violation of the Hearing Officer’s Order not to interfere in the evaluation process to be contemptuous, and to undercut the integrity of the BSEA Hearing Process. While the Hearing Officer found dismissal to be a justified and appropriate remedy, he did not dismiss Parents’ appeal but instead reduced any claims for retroactive reimbursement from three to two years. The Hearing Officer, giving Parents a final chance to comply, issued the following ORDER :

ORDER

1. Within thirty (30) school days of the receipt of this ORDER the Hampden-Wilbraham Regional School District shall complete the following evaluation of the Student:

Neuropsychological/Psycho-educational Assessment-report on intellectual abilities/cognitive process, emotional/personality features, 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.

2. Within forty-five (45) school days of the date of the receipt of this ORDER the Hampden-Wilbraham Regional School District shall convene an Evaluation Team to consider the findings and recommendations of said evaluation; all other HW evaluations performed pursuant to the 9/7/05 DOM ORDER ; and Parents’ private evaluation performed by Dr. Kemper.

3. The Parents may meet with the School District’s chosen evaluator(s) 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.

4. The District shall abide by evaluation procedures as outlined in state and federal law.

5. 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.

6. 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.

VII. 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.

7. 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.

The Hearing Officer also ruled that:

Any further interference with HW’s performance of a neuropsychological-psychoeducational evaluation of James with a professional/professionals of HW’s own choosing will result in a complete DISMISSAL WITH PREJUDICE OF BSEA #05-4878 .
(Please refer to RULING ON SCHOOL MOTION #2 , pages 6 through 11 of 2/16/06 ROM for complete factual background, ruling and analysis.)

On May 7, 2006 HW filed with the BSEA HW’s SECOND MOTION TO DISMISS WITH PREJUDICE (SMTDWP) based upon Parents’ continued interference with the neuropsychological-psychoeducational evaluation of James and Parents’ continued violation of the Hearing Officer’s ORDER , along with affidavits and exhibits. On March 13, 2006 Parents filed a MOTION TO EXTEND RESPONSE DEADLINE, which was opposed by HW. On March 24, 2006 the Hearing Officer granted Parents’ Motion and ordered:

Any written Parental response/argument, affidavit from Parents or affidavit from Dr. Haeberle must be received at the Bureau of Special Education Appeals no later than April 5, 2006. (This date was five days more than Parents had requested.)

On April 7, 2006 Parents filed a SECOND MOTION TO EXTEND RESPONSE DEADLINE along with exhibits and affidavits. HW filed its Opposition. On April 27, 2006 the Hearing Officer accepted Parents’ late submissions but denied Parents’ Motion to Further Extend the Response Deadline. The Hearing Officer also noted:

Further, the issue before the Hearing Officer raised in HW’s SMTDWP is a straightforward one: whether or not Parents again interfered with HW’s attempt to perform the neuropsychological-psychoeducational evaluation requested by HW in August 2005, ordered by the Hearing Officer in his DECISION ON MOTIONS on 9/7/05, and again ordered by the Hearing Officer in his RULING ON MOTIONS on 2/15/06.

Finally, the Hearing Officer scheduled a Motion Hearing on HW’s SMTDWP for May 16, 2006 at Catuogno Court reporting in Worcester, MA. See RULING ON PARENTS’ MOTION FOR A SECOND ORDER TO EXTEND RESPONSE TO HW’S SECOND MOTION TO DISMISS WITH PREJUDICE, issued April 27, 2006.

On May 15, 2006 at approximately 3 p.m. Parents filed a MOTION TO RESCHEUDLE MOTION HEARING, requesting a date in July. HW filed its Opposition. The Hearing Officer Denied Parents’ Motion To Reschedule and Ordered that the Motion Hearing would proceed as scheduled.

On May 16, 2006 Parents faxed to the Hearing Officer and HW’s attorney a message that they would not be attending the Motion Hearing. Therefore, the Motion Hearing proceeded in Parents’ absence.

In deciding this motion, the Hearing Officer has considered all of the written motions, arguments, exhibits and affidavits filed by Parents and HW, as well as the testimony offered by HW witnesses at the May 16, 2006 Motion Hearing. The Hearing Officer has also incorporated by reference into this RULING his 9/7/05 DOM and 2/15/06 ROM .

RULING ON HW’S SMTDWP

HW’s SMTDWP is hereby GRANTED . Please review the 2/16/06 ROM – RULING ON SCHOOL MOTION #2 from pages 6 through 11 for factual background, ruling and legal analysis of the Hearing Officer on HW’s initial Motion To Dismiss. My current analysis regarding HW’s SMTDWP builds upon the 2/16/06 ROM .

Bruce Ecker, Ph.D. is a licensed psychologist (clinical); certified school psychologist; and licensed educational psychologist who has been designated by HW to perform the neuropsychological-psychoeducational evaluation of James. On February 22, 2006 Dr. Ecker sent Parents a letter proposing to meet with Parents on March 1, 2006; proposed testing dates for James; and a proposed feedback session after the testing. Not hearing from Parents, Dr. Ecker called Parents on March 1, 2006. Parent had been away and requested another time to meet, which was offered by Dr. Ecker. Parent again alleged bias and questioned Dr. Ecker’s ethics but agreed to meet with Dr. Ecker on March 8, 2006. (See S-1 – 2/22/06 Letter Ecker to Parents; See also S-2 – March 7, 2006 Affidavit of Bruce Ecker.)

On March 2, 2006 Dr. Ecker received a telephone massage from Dr. Karen Haeberle, a licensed psychologist in the Springfield area, requesting that they speak on an important matter. Dr. Haeberle and Dr. Ecker spoke at 4:15 on March 2, 2006. Dr. Haeberle informed Dr. Ecker that if Dr. Ecker tested James, she was notifying Dr. Ecker of her intention to file a complaint against Dr. Ecker; that such testing would be a violation of the American Psychological Association code of ethics; and that it would be unethical for Dr. Ecker to test James against Parents’ wishes. Dr. Ecker asked Dr. Haeberle if she had a release of information to speak with him. Dr. Haeberle responded that she did and that Parent had requested that Dr. Haeberle speak with Dr. Ecker . Emphasis added. Dr. Ecker informed Dr. Haeberle that he could not discuss these matters with her without a release of information to speak with her. Dr. Ecker also informed Dr. Haeberle that her perspective might be different if Dr. Ecker were able to talk with her and she knew more about this matter. (See affidavit, Ecker; testimony, Ecker.)

On March 3, 2006 Dr. Haeberle left two voice mail messages for Dr. Ecker stating that if Dr. Ecker did the assessment she believed that it would cause harm to the Student because Parents would not feel confident in Dr. Ecker’s findings. Dr. Haeberle stated that she was not agreeing that Parents should feel that way and that she had said the opposite to Parents – that she thought Dr. Ecker’s findings would be perfectly valid. Dr. Haeberle stated that in her view Dr. Ecker’s testing of the Student would be unethical because such testing would prolong the conflict unnecessarily and would perpetuate the problem. (See affidavit, Ecker; testimony, Ecker.)

Dr. Ecker believed that these communications to him from Dr. Haeberle at the request of Parents were unjustified attacks on his professional ethics. Based upon Haeberle’s notice to him that his evaluation of James would result in an ethical complaint being filed against him, Dr. Ecker did not feel comfortable performing the ordered evaluation. Dr. Ecker stated that regardless of the lack of validity of the contemplated complaint,2 it could place him in a potentially vulnerable position professionally since he had never had a complaint filed against him. Dr. Ecker stated that together with Parents’ unfounded allegations of bias and unethical conduct (see 2/16/06 ROM ), the communications from Dr. Haeberle have, once again, interfered with his testing of the Student. (See affidavit, Ecker; testimony, Ecker.)

Thomas Philpott, HW’s Director of Special Education, testified that he chose to independently contract with Dr. Ecker to perform the evaluation of James because Dr. Ecker is the most qualified and experienced evaluator available to Mr. Philpott; that Mr. Philpott has seen numerous examples of the quality of Dr. Ecker’s work since 1998; that given Dr. Ecker’s experience and background he would be able to deal with a complicated case; and that Dr. Ecker’s evaluation would be thorough and comprehensive. (See testimony, Philpott.)

Despite the Hearing Officer’s suggestion in his March 24, 2006 ORDER granting Parents an extension of their response deadline, Parents filed no affidavit from Dr. Haeberle. Further, the affidavits/exhibits filed by Parents do not address the above issue of continued Parental interference in the HW requested/BSEA ordered evaluation of James which led to HW’s SMTDWP. Therefore, Dr. Ecker’s affidavit and testimony stands totally unrebutted.

I find that Parents’ request that a licensed psychologist contact HW’s chosen evaluator, and that such psychologist’s notice to HW’s evaluator that a complaint for ethical violations would be filed against him if he proceeded with the testing of James, clearly and unequivocally violated the Hearing Officer’s 2/15/06 ROM .3 The Hearing Officer has now issued two specific ORDERS in both his 9/17/05 DOM and 2/15/06 ROM , to wit:

The Parents may meet with the School District’s chosen evaluator(s) to provide their input regarding the area assessed. In all other respects, the Parents shall not interfere with the assessment and shall fully cooperate with all assessment procedures . Emphasis added.

In both instances Parental actions and/or actions of Parental agents acting on Parents’ behalf have violated orders of the BSEA to assure that such testing does not take place.

Please refer to 9/7/05 DOM page 4 which reviews the statutory and regulatory responsibilities and rights of a school to evaluate each child being considered for special education and related services and to utilize due process procedures if parents refuse to consent to the evaluation of the child. Please also refer to 9/7/05 DOM pages 4-6 which contain a legal analysis of federal appellate court cases and BSEA cases which have considered this issue. All such cases have consistently and uniformly held that if parents wish their child to receive special education under the IDEA, the school must be allowed to evaluate the child by qualified professionals of its choosing. One quote from the lead case on this subject, Andress v. Cleveland Independent School District , 64 F. 3 rd 176, 178 (5 th Cir. 1995) bears repeating:

A parent who desires for her child to receive special education must allow the school 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.

Since the 9/7/05 DOM yet another federal appeals court case M.T.V. v. Dekalb County School District , 2006 U.S. App. Lexis 9621 (11 th Cir. April 18, 2006) has considered this issue; has referenced many of the court cases cited by the Hearing Officer; noted that every court to consider this issue has concluded that if a student’s parents want him to receive special education under the IDEA, they must allow the school itself to evaluate the student and cannot force the school to rely solely on independent evaluations; and has agreed with all prior courts and held that the school was entitled to reevaluate M.T.V. by an expert of its choice.

BSEA Rule XVII(B) and 801 CMR 1.01(7)(g)(2) provide for dismissal of a case for failure to comply with these rules or with any Hearing Officer Order. The language in these two administrative regulatory provisions mirrors the language in both the Massachusetts Rules of Civil Procedure Rule 41B and the Federal Rules of Civil Procedure Rule 41B which govern orders of the Massachusetts and Federal Courts. BSEA Rule X(B)(16) also gives the Hearing Officer the duty and authority to censure, reprimand or otherwise ensure that all participants conduct themselves in an appropriate manner.

Parents’ continuing actions in violating the Hearing Officer’s ORDERS not to interfere in the evaluation process undercut the integrity of the BSEA Hearing Process. “It is axiomatic that a party may not ignore a district court order with impunity.” John’s Insulation v. L. Addison & Associates , 156 F.3d. 101 (1 st Cir. 1998). To allow Parents’ contemptuous actions and conduct would be to allow Parents to ignore BSEA Orders with impunity and to escape the foreseeable consequences of their non-compliance. See also Legault v. Zambarano , 105 F. 3d 24 (1 st . Cir. 1997); In re: Medford Public Schools, 10 MSER 18 (2004).

I find the above actions taken by the Parents to be clearly contemptuous. Were this matter being held in a state or federal court, such actions would subject them to a finding of contempt. Dismissal has been found to be a justified and appropriate remedy where there is a clear record of delay or contemptuous conduct by the plaintiff and where the non-compliant litigant has manifested a disregard for orders of the court. John’s Insulation v. L. Addison & Associates , 156 F.3d. 101 (1 st Cir. 1998); Legault v. Zambarano , 105 F.3d 24 (1 st Cir. 1997); Carter v. Memphis , 636 F.2d. 159 (6 th Cir. 1980).

Parents have been given every opportunity to comply with the HW requested and BSEA ordered evaluation of James. Parents’ conduct from September 2005 to May 2006 demonstrates that they have no intention of allowing James to be assessed by HW’s chosen evaluator or any evaluator Parent does not approve of, despite the Hearing Officer’s specific ORDERS in the 9/7/05 DOM or 2/15/06 ROM . Parents were explicitly warned regarding the precise consequences of further interference with HW’s performance of a neuropsychological-psychoeducational evaluation of James with a professional/professionals of HW’s own choosing. Parents have chosen to blatantly ignore and flagrantly violate the Hearing Officer’s ORDERS . Given Parents’ conduct, the Hearing Officer has no choice but to DISMISS BSEA #05-4878 WITH PREJUDICE .

ORDER

BSEA #05-4878 is hereby DISMISSED WITH PREJUDICE .

By the Hearing Officer

_______________________

Dated: July 21, 2006

Raymond Oliver


1

James is a pseudonym chosen by the Hearing Officer to protect the privacy of the Student in publicly available documents.


2

Dr Ecker has researched the American Psychological Association Code of Ethics and found that the section cited by Dr. Haeberle had been deleted/changed in 2003. Dr. Ecker cites a Code exception to the rule that evaluators may not test a subject without consent of the subject or his parents i.e., lack of consent may be overridden when ordered by a court to conduct an evaluation. (See affidavit, Ecker).


3

Please note that the Hearing Officer did not order Dr. Ecker or any specific psychologist to conduct the neuropsychological-psychoeducational evaluation of James, but upheld the School’s right to perform an evaluation with a professional/professionals of its own choosing. Nor did the Hearing Officer’s Orders involve any ethical standards/considerations by which psychologists are governed by either the Massachusetts Board of Registration of Psychologists or the American Psychological Association.


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