Lexington Public Schools v. Student – BSEA # 10-2604



<br /> Lexington Public Schools v. Student – BSEA # 10-2604<br />

COMMONWEALTH OF MASSACHUSETTS

SPECIAL EDUCATION APPEALS

In Re: Lexington Public Schools v. Student

BSEA # 10-2604

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 October 20, 2009, Lexington Public Schools (Lexington) filed a Request for Hearing in the above-referenced matter. Lexington later requested that the matter be decided on submission of documents only. On November 12, 2009, Parent communicated her assent to have the case decided on submission of documents only. The Parties’ request is granted pursuant to Rule XII of the Hearing Rules for Special Education Appeals.1 Following receipt of Parent’s argument and documents, Lexington requested an opportunity to respond, which request was granted on November 12, 2009, and Lexington was given until November 23, 2009, to submit its response. This decision on documents and arguments offered by the Parties, is being issued by Hearing Officer Rosa I. Figueroa.

In rendering this decision I rely on documents submitted by Lexington on November 16, 2009, and marked as exhibits SE-1 through SE-7; and documents submitted by Parent and marked as exhibits PE-1 through PE-36. The record closed on November 23, 2009.

ISSUES:

1. Whether Parent is entitled to independent Adaptive Physical Education and Functional Living Skills evaluations?

2. Whether Parent is entitled to reimbursement for the Neuropsychological Evaluation conducted by Dr. Lovecky?

3. Whether Lexington is required to pay amounts greater than the rates established for Speech and Language, Assistive Technology, Vocational/ Transitional, and Occupational Therapy independent evaluations?

POSITION OF THE PARTIES

Lexington’s Position:

Lexington sates that pursuant to a Ruling2 earlier this year on its Motion for Summary Judgment regarding Lexington’s right to conduct its proposed three year re-evaluation, Lexington conducted evaluations in several areas by qualified individuals.

Lexington asserts that it is not responsible to fund the independent Adapted Physical Education sought by Parent, because its evaluation was comprehensive and appropriate; the Functional Living Skills evaluation because this area was covered by other evaluations it performed; and the Neuropsychological Independent Evaluation because this issue was already adjudicated by the previous Hearing Officer in the instant case.

It also disputes that it has to fund independent Speech and Language, Assistive Technology, Vocational/transitional, and Occupational Therapy evaluations at a rate greater than the one established by the Massachusetts Division of Health Care Finance and Policy Regulations, since there are no exceptional circumstances warranting deviation from the established rates .

Parent’s Position:

Parent asserts that Student presents very complex issues, and challenges Lexington’s evaluations on the basis that they are not comprehensive enough. She also asserts that Lexington’s evaluations fail to provide an in-depth picture of Student’s strength and weaknesses. Parent also states that Student’s slow processing speed prevent him from completing the evaluations within a prescribed time frame. Moreover, she believes that the evaluators who accept rate setting rates do not possess the necessary training and experience to understand Student’s unique needs. As such, she seeks comprehensive independent evaluations in multiple areas that exceed the time and pre-determined rates allotted under the Massachusetts Division of Health Care Finance and Policy Regulations.

Parent also seeks reimbursement for Dr. Lovecky’s neuropsychological evaluation of January and February 2009.

Lastly, Parent argues that a previous special education director in Lexington had agreed to pay for independent evaluations that exceeded pre-determined rates, and therefore, she should be allowed the same leeway as before.

FINDINGS OF FACT3

1. Student is a seventeen year-old resident of Lexington, Massachusetts (SE-3). Student attended fifth grade through the winter of his ninth grade in Lexington, after which Parent homeschooled him for the remainder of the 2006-2007 school year (SE-2). During tenth grade, Student attended the Minuteman Vocational High School for electronics and energy. After failing all but one course, and being told that he would have to repeat 10 th grade, Parent homeschooled him again for the eleventh grade ( Id. ). Student was officially withdrawn from Minuteman Vocational High School in November 2008 (SE-5).

2. Student, who was delivered with vacuum suction, has been diagnosed with: Momentary Cardiac Arrest at birth, prenatal preeclampsia, and colic; Asperger’s Disorder; ADHD; mild Cerebral Palsy causing lower extremity weakness, weak hand muscles and pain with extended writing, Spastic Diplegia; Mitochondrial Disease4 (which impacts his metabolism, energy level and many bodily systems); Generalized Anxiety Disorder; Dysthymia; Depression; seizures; Learning Disability in Written Expression; Learning Disability in Reading; Obsessive Compulsive Features; Tourette’s Syndrome; several bouts of Pneumonia and repeated ear infections (PE-27; SE-2). Student also suffered a fracture of the L3 vertebra, and suffers from mild sleep apnea (SE-4). His fine motor issues make it difficult for him to perform certain tasks, such as changing his clothes, in a timely fashion (PE-23).

3. At Parent’s request, Student underwent extensive evaluation by Dr. Deidre Lovecky in January 20095 (PE-31; SE-2). Dr. Lovecky administered the WAIS-IV, Woodcock-Johnson-III, TOWL-4, Peabody Picture Vocabulary, WRAT, Bender, Comprehensive Assessment of Spoken Language, Test of Pragmatic Language-2, Rey-Osterrieth Complex Figure Drawing, Hooper Visual Organization Test, Developmental Test of Visual Perception, Benton Facial Recognition Test, most of the NEPSY-II, Comprehensive Trail-Making Test, D-2 Test of Attention, Tower of London, Stroop Color-Word, Test of Reading Comprehension-4, and checklists including the Conners Parent Form, Brown, Jullian Asperger’s Child Behavior Checklist, Self-Esteem Index, and Roberts-II (PE-31). As of September 9, 2009, Parent stated that she had not yet received the report of Dr. Lovecky’s evaluation (SE-2).

4. Dr. Lovecky’s report, which is not dated, states that Student was cooperative and motivated during the evaluation but that even when he showed fatigue it was difficult for the evaluator to convince Student to take breaks. She, however, found that when he took breaks, he performed better (PE-31). During the testing, he required re-direction to re-focus his attention, instructions had to be repeated as a result of his interrupting or talking while the evaluator was presenting material or directions, he displayed difficulty with planning and organization and worked at an exceptionally slow pace partly due to his slow processing speed and his “piece-by-piece approach to tasks” (PE-31). She made twenty three recommendations to address Student’s difficulties within a high school setting, including a flexible, high level curriculum with frequent breaks, participation in extracurricular activities, much one-to-one instruction, as well as an assigned aide, and use of assistive technology. She also recommended access to specialized Physical Education and a health course specially designed for adolescents with Asperger Syndrome. Continued individual psychotherapy, in addition to participation in community teen group activities to develop social skills, was also recommended (PE-31).

5. On February 1, 2009, Parent signed a consent form allowing Lexington to proceed with a physical therapy evaluation of Student.

6. Lexington conducted a physical therapy evaluation on April 28, 2009 (SE-6). The evaluation was performed by Barbara Jean Hetherington, RPT. Parent was present during the evaluation. According to Ms. Hetherington, Student was cooperative. No formal testing to assess gross motor skills was performed. Instead, Student’s strength was evaluated by a manual muscle test through which he scored a five (5 indicative of good/normal strength); balance was assessed through a variety of activities and found to be good; wrist and finger motion was found to be within normal limits; and endurance was assessed on the basis of his ability to complete strengthening exercises; but he was unable to complete more than five (5) sit ups or push ups before developing tremors in his extremities, beginning to sweat and having to rest for several minutes. Range of motion was also measured. Ms. Hetherington found that Student presented with “slight hypermobility at his shoulders, elbows and knees” but he presented good strength of his trunk and extremities, as well as good balance. He demonstrated decreased endurance with gross motor tasks and reported disliking physical activity because he becomes easily fatigued. He was found to be capable of monitoring his fluid intake to avoid dehydration and according to the evaluator, understood his dysutonomia. Student however, did not consistently recognize when he was becoming fatigued and worked until he could not go on further (SE-6).

7. On May 15, 2009, Parent consented to Lexington conducting a Special Education assessment, Speech and Language assessment, Occupational Therapy assessment, Physical Therapy assessment, Vocational assessment and Assistive Technology assessment (PE-14).

8. Pursuant to a Ruling issued on May 29, 2009, addressing Lexington’s Motion for Summary Judgment, Lexington was allowed to proceed with Educational/ Psychological, Speech and Language, Occupational, Assistive Technology, Physical Therapy, and Vocational evaluations of Student (SE-1). Parent also requested that Lexington fund the private Neuropsychological evaluation completed by Dr. Lovecky during the winter of 2009 ( Id. ).

9. At Lexington’s request, Janet Vodvarka, Ph.D., conducted a Psychological/ educational evaluation of Student on June 23 and September 9, 2009 (SE-2). Due to the extensive evaluation performed by Dr. Lovecky earlier in 2009, Dr. Vodvarka found it necessary to use other measures not used earlier. She administered the Wechsler Intelligence Test-Edition IV (WISC-IV); Wechsler Individual Achievement Test-Edition II (WIAT-II); Delis-Kaplan Executive Function System: Trail Making, Design Fluency, Verbal Fluency, Sorting Test, Twenty Questions Test, Word Context Test; Conners-3 Parent Rating Scales; Tasks of Emotional Development (TED); Achenbach Youth Self-Report for ages 11-18; Behavior Assessment System for Children, Ed.-2, Adolescent and Parent Rating Scales, and interviews. The focus of Dr. Vodvarka’s evaluation was to provide updated information regarding Student’s “ability level, academic levels, executive functioning and emotional functioning” (SE-2). Previous reports reviewed by Dr. Vodvarka noted superior to very superior verbal ability and non-verbal reasoning with slow processing speed, attentional difficulties, executive functioning difficulties, fine motor weaknesses, social pragmatic weaknesses, weaknesses in spelling, phonological processing difficulties, poor reading fluency and poor math. Dr. Vodvarkas reported that Student engaged in the testing and put forth good effort (SE-2). Test results were consistent with previous testing.

10. Debbie L. McCanne, licensed Speech and Language Pathologist, M.S., CC-SLP, conducted the Speech and Language evaluation on September 1, 2009 (SE-3). She administered the Expressive One-Word Picture Vocabulary Test Upper Extension (Gardner), Peabody Picture Vocabulary Test-Revised (Form-III), Test of Language Competence-Expanded edition (TOLC-UE), Test of Written Language (TOWL-3, Form A), conducted interviews and consultation. Ms. McCanne found Student to present strengths with expressive and receptive language skills while demonstrating difficulty with shifting his focus of attention and reading facial expressions. He also demonstrated slow performance with written tasks. Ms. McCanne recommended formal services to address pragmatic language difficulties and accommodations to address his weaknesses (SE-3).

11. Karen Rowe, of Merrimack Education Center, conducted Student’s two-day Vocational Assessment starting on September 10, 2009, at the request of Lexington (PE-15). Ms. Rowe performed the McCarron-Dial Systems Vocational evaluation which incorporates a number of intellectual (Wechsler Adult Intelligence Scale, Peabody Picture vocabulary Test-Revised, Wide Range Achievement Test-4), sensory (Bender Visual Motor Gestalt Test, Haptic Visual Discrimination Test), motor (McCarron Assessment of Neuromuscular Development), emotional (Observational Emotional Inventory6 ), coping/adaptive behavior (Street Survival Skills Questionnaire7 , Dial Behavior Rating Scale), and memory (Perceptual Memory Tasks) instruments. She also administered the Wide Range Interest Opinion (WRIOT2) and Situational Assessment which involves an on the job evaluation observation by job coaches and/or employers which seek to assess Student’s ability to apply skills to real life situations. Student was cooperative and polite during the evaluation although at times he expressed that the tasks presented were not challenging enough for him. Student expressed interest in the energy field, specifically in explosives, various forms of weaponry and lasers, as well as in the process of understanding how things function by taking them apart. He hopes to secure a job in the defense industry working with lasers, in a company such as Raytheon or Lincoln Labs. He also hopes to enjoy autonomous living in the community with minimal assistance (PE-15).

12. The results of Ms. Rowe’s evaluation suggest a focus on the development and/or accommodation of skills in the following order of priority: Emotional/ Behavioral; Coping/Adaptive Behavior; Sensory; Motor; and Intellectual. Regarding the emotional area, Ms. Rowe found that Student’s “impulsivity, anxiety, depression [albeit not clinical depression], socialization and self-concepts” were areas needing programmatic intervention. Student scored within the average range in the Street Survival Skills Questionnaire and while the report notes numerous strengths in various areas, it also notes a need for programming intervention regarding: “dressing neatly and appropriately for the situation; ability to handle living arrangements independently; effect on performance and morale of peers; physical stamina for lifting, loading or prolonged standing,[and] ability to stand up to stressful situations” (PE-15). In the sensory test, he performed within the general population range with weaknesses in eye-hand coordination. Relative weaknesses were noted with left and right upper body coordination, and right side balance in his motor assessments. Severe weaknesses were noted with Student’s left and right fine motor speed as well as with balancing with his eyes closed. Intellectual functioning and perceptual memory skills fell within the average to above-average range with relative strengths in sequential visual memory and needs in the area of recent memory (recalling images after a period of time) but with the “ability to meet the recent memory requirements of most occupational tasks.” The WRIOT2 results showed Student’s average level of interest in the area of factory/assembly work. Student’s Mother was present during at least part of the vocational evaluation (PE-15).

13. Ms. Rowe was unable to perform the situational portion of her assessment as Parent expressed concern that the worksites suggested by Ms. Rowe were not appropriate. A conversation took place among Student, Parent and Mr. Tim Callahan, MSEC Program Manager, at the request of Ms. Rowe, in which it was explained to Parent and Student that the purpose of this portion of the evaluation was to assess basic vocational skills and that any of the work site options presented by Ms. Rowe would be appropriate. Parent disagreed and offered to contact an individual at Raytheon so that the situational evaluation could take place at Raytheon. When contacted a few weeks later, Parent had not contacted the person at Raytheon and stated that the situational assessment “should not be done until a work site appropriate to [Student’s] interest and abilities was available.” Ms. Rowe made numerous recommendations to address Student’s weaknesses and recommended exposure to various vocational experiences that could help Student determine appropriate careers to pursue. She also recommended contacting Massachusetts Rehabilitation Commission in the future, as well and other agencies that could assist Student in obtaining and maintaining employment (PE-15).

14. Lexington’s Occupational Therapy assessment was completed by Maureen Smith-Wojcik, MS, OTR/L, on September 16, 2009 (SE-4). The purpose of her evaluation was to assess Student’s fine motor, visual motor and sensory motor skills as well as activities of daily living skills required for Student to access the school curricula. Student’s gross motor skills had been previously assessed in May 2009. Ms. Wojcik administered the Test of Handwriting Skills, the BOT-2 Bruninks-Oseretsky Test of Motor Proficiency (fine motor composites), Dunn’s Sensory Profile (Questionnaires filled out by Student and Parent), and she conducted clinical observations. Although stating to Ms. Wojcik that he had “every fine motor and visual motor test there is”, Student was cooperative during the testing session even though he had difficulty staying on task. Student also expressed frustration at being asked to try the same writing and organizational methods he had attempted in the past, over again when those methods had not worked for him. The evaluator allowed Student some flexibility with the test, customizing it for him,so as to obtain the maximum information possible on his strengths and weaknesses (SE-4).

15. Ms. Wojcik found that Student’s hand muscle tone and strength were within normal limits. Student’s visual motor skills and fine motor skills fell within the average range although he reported pain with writing and his sensory issues appeared to be significant (SE-4). He showed issues with dyspraxia but was not found to be in need of Occupational Therapy services at the time of the evaluation. Ms. Wojcik recommended consultation to Student and his teachers around sensory issues, including a sensory diet and accommodations (SE-4).

16. Patty McTigue, MSE, ATP, performed the Assistive Technology assessment on behalf of Lexington, dated September 8, 2009 (SE-5). Her evaluation however, had begun in July 2009. Ms. McTigue reviewed Student’s IEP of January 2008 through January 2009; the Architects for Learning Writing Intervention Support by Kristen Mallet Bator, MS, CCC-SLP of May 19, 2007; the neuro-psychological screening by Isabel L. Stevens, Psy.D., dated January 15, 2007; ALL tech Notes from November 2005 through June 2006; and she had discussions with Sherrie Coughlin, Lexington’s High School Special Education Supervisor, and Parent. She concluded that Student, who was found to be computer literate and could operate computers independently, presented difficulties with organization, memory and fine motor skills. As a result, she recommended that he be provided training and guidance, as well as use of a computer. She further recommended evaluation with computer access in his educational setting. Ms. McTigue also suggested evaluation of Dragon NaturallySpeaking, speech-to-text software, and graphic organization in the educational setting (SE-5). Alternative means to standard note taking in the classroom setting should be evaluated to address his upper extremity pain and fatigue. She found imperative that any of the tools considered be tried by Student in the educational setting to determine their usefulness. Because of the limited information regarding Student and inability to observe him in the educational setting, Ms. McTigue was unable to make Asistive Technology recommendations (SE-5).

17. On October 13, 2009, Parent wrote to Lexington requesting independent evaluations in the areas of: Speech and Language, Assistive Technology, Adapted Physical Education, Independent Living Skills, Vocational/Transitional and Psychological/Educational on the basis that the evaluations performed by Lexington were not comprehensive (SE-7). Parent further stated that other evaluations sought by her had not been performed. Parent sought more guidance regarding Student’s transition to adulthood and a deeper understanding of his strengths and weaknesses.

18. Parent proposed to use the following evaluators to perform Students’ independent evaluations:

Kristen Bator, SLP-CCC and Bonnie Singer, SLP-CCC, for the Speech and Language evaluation;

Karen Janowski, OTR, at EdTech Solutions for the Assistive Technology evaluation (Parent stated that Lexington had previously funded an evaluation by this evaluator);

John Pasarini for the Adaptive Physical Education (a former employee of Lexington);

Karen Levine, Ph.D., Independent Living Skills evaluation;

Deb Hart, Ed.D., to conduct the Vocational Transition evaluation;

Linda Hamilton-Gosco for the Occupational Therapy and Sensory Integration evaluation;

Dierdre V. Loveskey, Ph.D., for the Psychological and Educational evaluation (SE-7).

In her request, Parent stated that if any of the above-referenced evaluators were unavailable to conduct the evaluation, she would substitute that individual with another with similar credentials (SE-7).

19. The report of Student’s vocational evaluation was completed by Lexington on September 10, 2009 and the report became available on October 19, 2009.

20. Lexington filed its request for Hearing challenging Parent’s request for publicly- funded independent evaluations on October 20, 2009.

21. A Team meeting was held on November 4, 2009 at which time the evaluations performed by Lexington were discussed. The Team meeting had been delayed due to scheduling conflicts.

CONCLUSIONS OF LAW

Student is an individual with a disability falling within the purview of the Individuals with Disabilities Education Act8 (IDEA) and the state special education statute.9 This matter comes before the BSEA on Lexington’s request for a determination that its evaluations of Student were comprehensive and appropriate, and that it is therefore, not responsible to fund two of the independent evaluation sought by Parent and that it need only pay the established rates for the independent evaluations it has agreed to fund.

Upon consideration of documents and arguments submitted by the Parties, and relying on the Findings of Fact section of this decision, I conclude that the evidence presented by Lexington supports a finding that with the exception of the Physical Therapy evaluation, its other evaluations were comprehensive and appropriate and that it is not responsible to pay amounts in excess of those approved under the Massachusetts Division of Health Care Finance and Policy Regulations, pursuant to 603 CMR 28.04(5)(a) . In this regard, Lexington met its burden of persuasion pursuant to Schaffer v . Weast , 126 S.Ct. 528 (2005)10 . My reasoning follows:

The IDEA11 regulations confer upon parents of disabled students the right to proceed with independent evaluations at public expense. 34 CFR 300.502. The regulations define an 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).

If the requisite conditions are met, the federal regulations require that the evaluation 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).

That is, school districts must pay the full cost of the evaluation sought by parents or ensure that the evaluation will be provided at no cost to the parents. Consistent with this provision, school districts are required to supply parents with a list of service providers who abide by the state guidelines regarding competency to perform the evaluation as well as the rate structure for independent evaluations.12 States are left to regulate further consistent with federal law.

Additionally, when parents request an independent evaluation the federal regulations discourage unnecessary delays by school districts requiring school district to either pay for the evaluation or request a hearing when it believes that its evaluation is appropriate. 34 CFR 300.502(b)(2).13

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

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.14 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 (emphasis supplied). Massachusetts Regulations further provide 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, Lexington disputes the evaluations sought by Parent and opted to file an appeal with the BSEA within the prescribed five school days. Given that Lexington seeks different outcomes regarding its responsibilities vis á vis the independent evaluations sought by Parent, I address each group separately.

Adaptive Physical Education and Independent Living Skills/Functional Living Skills evaluations:

Parent seeks a comprehensive Adaptive Physical Education15 evaluation which should include not only Physical Education but also participation in recreation, program development, or recreation and leisure needs. Parent claims that failure to obtain such a thorough Adaptive Physical Education evaluation in the past resulted in a lack of specialized Physical Education planning for Student. Dr. Lovecky, the neuropsychologist on whom Parent relies, described specialized Physical Education for Student to include individualized sports such as swimming and horseback riding. She also recommended that Student receive health training designed for adolescents with Asperger’s Syndrome, to include topics such as health practices, hygiene and safe sex (PE-31).

Lexington objects to this evaluation on the basis that issues relative to Adaptive Physical Therapy were addressed through the district’s Physical Therapy evaluation, and/or Occupational Therapy evaluations. Lexington, however, does not object to Parent’s request for an independent Occupational Therapy evaluation at rate setting rates as discussed later in this decision.

Regarding the Adaptive Physical Education evaluation sought by Parent, the evidence shows that Lexington conducted a modified physical therapy evaluation, not an adaptive physical therapy evaluation. Parent requests an evaluation in an area not assessed by the district, but has not presented any current information in support of an adaptive physical therapy evaluation. It is assumed, and recognized by Lexington, that due to Student’s medical issues, endurance activities/physical activities in which he engages need to be modified. While Lexington’s evaluation successfully presents a picture of Student’s gross motor/physical condition, it fails to offer any recommendations regarding provision of physical therapy, leaving the parties with little guidance as to whether Student requires physical therapy, or modified Physical Education, and what specifically he should receive. Therefore, Parent is entitled to an independent Physical Therapy evaluation.

Turning to Parent’s request for the Independent Living Skills/Functional Living Skills assessment, she relies on BSEA decisions to argue that Lexington bears responsibility to prepare Student for post-secondary education, jobs and independent living in the community. Parent asserts that Independent Living Skills include broad areas not assessed by Lexington as well as direct observation of Student in multiple settings, and interviews with individuals involved in Student’s life. Parent further states that Lexington’s testing results fail to make a connection with transitional planning, explaining that the evaluator, Ms. Rowe stated in her assessment that Student’s poor understanding of situations depicting typical teenage boys was attributed to issues related to Student’s Asperger’s Syndrome and “other reasons”. Parent suggests that the “other reasons” referred to in the report, are the result of home schooling which caused him to be isolated from other typically-developing teenage boys. Parent alleges that home schooling was necessary because of Lexington’s failure to offer a school placement. She challenges Lexington’s report on the basis that it offers no plan for Student to move toward independent living.

Lexington argues that any issues relative to the areas of Independent or Functional Living Skills were addressed through the Vocational/Transitional and/or Psychological evaluations, and argues that these areas do not need to be assessed separately.

Review of PE-15, the vocational evaluation by Dr. Rowe, and SE-2, Dr. Vodvarka’s psychological/educational evaluation shows that the areas of Functional Living Skills and independent living are indeed covered by these evaluations, and recommendations are offered by both, the implementation of which may be discussed in more detail at a Team meeting.

In her report, Ms. Rowe notes Student’s areas of strength (to wit, intellectual, sensory, coping/ adaptive behavior and motor factors), and makes numerous recommendations regarding areas that require attention and vocational planning that includes opportunities for job exploration. She raised concerns regarding Student’s emotional/behavioral and also coping/adaptive needs (e.g., “dressing neatly and appropriately for the situation, ability to handle living arrangements independently, effect on performance and morale of peers, physical stamina for lifting, loading, or prolonged standing, and ability to stand up to stressful situations”) (PE-15). She also suggested engaging agencies such as the Massachusetts Rehabilitation Commission to assist with plans for further education, obtaining and maintaining jobs.

Dr. Vodvarka notes that the purpose of her evaluation was to gain updated information regarding Student’s ability levels, academic functioning, and executive and emotional functioning. Dr. Vodvarka remarked on the necessity of using measures that had not been used previously due to the extensive testing conducted by Dr. Lovecky approximately four months prior to Lexington’s evaluation. The fact that Student has not been enrolled in a formal school program for over a year also made it difficult for Dr. Vodvarka to assess certain measures of Student’s executive functioning as input from teachers was lacking (SE-2). Regarding the personality functioning, she relied greatly on Parent’s input on the Behavior Assessment System for Children-Ed.-2, suggesting difficulties in activities of daily living and functional communication. On activities of daily living, Parent reported that Student almost always requires help or reminders from others regarding personal hygiene, schedules and organization. Support was recommended in these areas to address Student’s variable executive functioning ability (SE-2).

The evidence shows that the aforementioned evaluations provide a starting point to address Student’s Functional Living Skills and Independent Living Skills. These areas will have to be re-assessed and recommendations modified as Student continues to develop and the recommendations are actually put in practice. Given that Lexington has agreed to fund an independent Vocational evaluation and in light of Dr. Lovecky’s forty-five page, extraordinarily thorough report, there is no basis to grant Parent’s request for a separate independent Functional Living Skills evaluation. As stated earlier, there is currently a wealth of information available on Student that the Team can access to draft a transitional plan for Student. Therefore, Parent is not entitled to the aforementioned evaluations.

Vocational, Speech and Language, Occupational, and Assistive Technology independent evaluations:

According to Parent, Lexington’s vocational/transitional evaluation fails to address either Independent Living Skills or Vocational/Transitional needs. The evaluation report emphasizes emotional/behavioral and coping/adaptive behaviors as areas to focus on for the purpose of developing accommodations and programming. The report mentions areas of vocational interest pursuant to the Wide Range Interest Opinion Test which include factory assembly, cleaning, building repair, and heavy equipment/machine operator jobs which Parent states are inappropriate given Student’s Mitochondrial disease and Grand Mal seizures. Parent concedes that the report acknowledges Student’s issues with memory and physical limitations, as well as the need to get the Massachusetts Rehabilitation Commission involved in the future. However, she argues that it ignores Student’s interest in the field of energy and lasers. Also, while the Street Survival Skills Survey addresses Student’s current level of Independent Living Skills and Vocational/ Transitional skills, according to Parent, in general the assessment fails to address issues relative to independent living.

Lexington asserts that the Vocational Assessment report became available to Lexington on October 19, 2009, and as of that date had not been forwarded to Parent. Since Parent requested an independent evaluation in this area on October 13, 2009, prior to seeing Lexington’s evaluator’s report, Lexington initially objected to an independent assessment stating that Parent’s request was premature. Additionally, Lexington argued that Student presented no exceptional circumstances warranting a higher rate than the one set by the Massachusetts Division of Health Care Finance and Policy Regulations for this evaluation. See 603 CMR 28.04(5)(a) . In its response to Parent’s argument, received on November 23, 2009, Lexington agreed to fund an independent vocational assessment.

Lexington further agreed to fund independent evaluations in the areas of Speech and Language, Occupational, and Assistive Technology as well as the Vocational/ Transitional planning assessment, at the rates established by the Massachusetts Division of Health Care Finance and Policy, since, a ccording to Lexington, no exceptional circumstances exist in support of establishing a higher rate.

Parent challenges Lexington’s position on the basis that Student fits the unique circumstances, or individual consideration category, as termed by the Massachusetts Division of Health Care Finance and Policy Regulations. 603 CMR 28.04(5)(a) .

A finding that Student presents with unique circumstances would entitle Parent to a higher amount of reimbursement because it considers that some students may present with complex challenges that require a more thorough or unique evaluation.

The phrase “unique circumstances” is found in the Massachusetts Special Education Regulations addressing reimbursement for independent evaluations, which states in pertinent part

… unique circumstances of the student may justify an individual assessment rate that is higher than that normally allowed. 603 CMR 28.04(5)(a).

Individual Consideration (I.C.) is defined within the Massachusetts Division of Health Care Finance and Policy Regulations as

Those rates for authorized services that are determined by a governmental unit based upon the nature, extent, and need for such service and the degree of skill and time required for its provision. Providers must maintain adequate records to determine the appropriateness of their I.C. claims and must provide these documents to the purchasing agency upon demand. 114.3 CMR 30.02.

It is in this light that I examine whether individual consideration is warranted because of “unique circumstances”16 in the assessment areas sought by Parent in the aforementioned areas.

Lexington does not dispute that Student presents with a complex learning profile or that he has slow processing skills. It however, states that its evaluators were able to complete and conduct comprehensive evaluations within a reasonable timeframe.

Parent disputes Lexington’s assertions stating that because Student is unable to process information at a normal rate, or move, or dress, or eat at a normal pace, his evaluations will require additional time. She relies on numerous documents dating back to 2004 and 200517 (PE-24; PE-25; PE-26). These documents however, are stale and Parent presents no current documentation to connect the old information with Student’s current status. Current information regarding Student’s slow execution of tasks is found in Lexington’s Speech and Language evaluation (SE-3) on which Parent relies. Parent points out that the evaluator, Ms. McCanne, states in her report that she was unable to administer some of the test batteries during the four hours allotted to the Speech and Language evaluation because of Student’s slow speed in completing tasks which she attributed to his “difficulty shifting his focus of attention easily… [and drive] to complete his dialogue on a subject before being able to transition to a different matter” (SE-3). In spite of not administering all of the test batteries, Ms. McCanne concluded that the test results were reliable and that they presented an accurate measure of Student’s abilities in Speech and Language. She also remarked that Student’s attending skills during the one-on-one testing session were excellent.

Although Parent alleges that Student’s slowness and complex diagnosis requires additional time to complete the evaluations, she presents no current evidence that additional time is required by every single independent evaluator in all of the areas to be evaluated. Parent did not produce information to show that unique circumstances exist in each individual area and therefore, none of the evaluations can be completed in the prescribed time, and for the allowable rates. See In Re: Triton Regional School District , 13 MSER 380, 386 (Figueroa, 2007). Parent also made no showing that she made all reasonable attempts to identify or locate qualified evaluators who would abide by the Massachusetts rate-setting rates.

Lexington further argues that pursuant to 114.3 CMR 30.00 et. seq ., if an evaluator anticipates that a student presents unique circumstances which would warrant individual consideration and that additional time will be needed to conduct the evaluation, the evaluator must raise this issue with the district prior to initiating the evaluation, and must explain the particular circumstances presented by the student which warrant individual consideration.18 The evaluator must also provide an estimate of the additional time required which must be billed at the maximum hourly rate of $62.50 per hour.

In the case at bar, Parent has presented no evidence as to whether the evaluators she selected accept rate setting rates, whether the evaluators believe that exceptional circumstances call for an individual consideration in excess of the time allotted by the

Massachusetts Division of Health Care Finance and Policy Regulations, and if so provide the estimated additional time it will take him/her to conduct the evaluation. In this regard, there is insufficient evidence to support a finding that the independent evaluations warrant additional time and should be paid in excess of what has been offered by Lexington on the basis of individual consideration.

Equally unpersuasive is Parent’s assertion that evaluators who accept rate setting rates lack the requisite training, expertise and experience to properly evaluate Student. Consistent with the IDEA requirements, Lexington asserts that it provided Parent information regarding area hospitals that accept rate setting rates, as hospitals in the Commonwealth of Massachusetts accept Medicaid reimbursement rates which are consistent with the rates set by the Massachusetts Division of Health Care Finance and Policy Regulations. Additionally, Lexington argues that many qualified individuals in the Commonwealth accept rate setting rates. While Parents are always entitled to select, and proceed with, the individuals of their choice to conduct private evaluations of students, this does not mean that districts are automatically responsible to cover those expenses. Districts are only mandated to provide independent evaluations consistent with federal and state law.

Here, the record lacks any evidence that Parent sought out evaluators who accepted rate setting rtes, as Lexington correctly points out. There is absolutely no basis to support Parent’s claims.

Lastly, Lexington asserts that it may have agreed to waive the rate setting rates for Assistive Technology, Occupational Therapy, Adaptive Physical Education and Physical Therapy as well as a combined Psychological and Educational independent evaluations in 2004, as raised by Parent, and may have also agreed to pay the fees for a neuropsychological evaluation by Dr. Lovecky.19 (PE-17; PE-18; PE-19; PE- 20; PE- 21) This however, does not mean that Lexington is forever bound to cover evaluations outside the rates established by the Massachusetts Division of Health Care Finance and Policy Regulations. Parent’s assertions regarding evaluations that took place in 2004 are irrelevant to the issue of whether unique circumstances exist today, and the fact that Lexington may have agreed to fund those in the past does not bind the district into the future. In 2009, Lexington has opted to dispute Parent’s request and Parent has presented no evidence to support a finding that Lexington made a commitment to fund any independent evaluation in 2009 or 2010 at a rate higher than the prescribed rates. Therefore, a finding is entered in favor of Lexington.

Therefore, regarding the Vocational/Transitional Planning, Speech and Language, Occupational, and Assistive Technology independent evaluations, Lexington met its burden of persuasion in showing that it is not responsible to fund independent evaluation in these areas at rates exceeding those established by the Massachusetts Division of Health Care Finance and Policy Regulations.

Should Parent wish to take issue with the amounts allowed by the Massachusetts Division of Health Care Finance and Policy, Parent’s recourse is not with the BSEA, as the BSEA has no jurisdiction over the rates set by the aforementioned agency.

Dr. Lovesky’s independent neuropsychological evaluation

This issue20 was already addressed by Hearing Officer Putney-Yaceshyn via Ruling, issued on May 29, 2009. In her Ruling, the Hearing Officer denied Parents’ request. Since this issue has already been adjudicated, Parent is precluded from raising it again (SE-1). Parent’s request is denied.

The totality of the evidence overwhelmingly suggests that Student has been adequately and thoroughly evaluated by numerous professionals in relevant areas. While Parent is entitled to independent evaluations in the areas discussed supra , the independent evaluators may be able to rely on the wealth of information already available on Student to complete the evaluations within the established timeframes. Regarding the vocational evaluation, Lexington shall complete the situational portion of that evaluation forthwith at a work site option such as Raytheon if Parent can arrange for this to occur within one week of issuance of this decision, or at any other location deemed appropriate by Ms. Rowe and/or Mr. Callahan. Given the amount of available information on Student, the Parties are advised to focus their attention on programming that can be implemented as soon as possible.

ORDER

1. Lexington shall fund Parent’s requested independent evaluations in the areas of Speech and Language, Assistive Technology, Occupational Therapy inclusive of a Sensory Profile assessment, Physical Therapy evaluation, Vocational/ Transitional planning evaluation, consistent with the rates set by the Massachusetts Division of Health Care Finance and Policy .

2. Lexington shall complete the situational portion of its Vocational evaluation by January 15, 2010, and Student shall be made available for this evaluation.

3. Parent is not entitled to reimbursement for Dr. Lovecky’s Neuro-psychological evaluation as previously determined by Hearing Officer Catherine Putney-Yaceshyn.

So Ordered by the Hearing Officer,

___________________________

Rosa I. Figueroa

Dated: December 7, 2009


1

“ Rule XII: Decision Without a Hearing

A party may request a decision without a hearing

All parties must agree to a decision based solely on written material. The decision will have the same force and effect as any other BSEA decision.”


2

This Ruling was issued by the previous Hearing Officer Catherine Putney-Yaceshyn on May 29, 2009.


3

Parent provided her version of the facts which for the most part were irrelevant to the issue before me and therefore, not included as part of the facts delineated herein. Also, PE-1 through PE-12, PE-16, PE-22, PE-30, PE-32, PE-33, PE-34, PE-35, PE-36, and PE-37 were deemed stale and/or irrelevant to the issue before me, and there was no PE-13.


4

This disorder causes Student to experience “chest pain, shortness of breath, muscle weakness and fatigue, autonomic dysfunction, persistent lymphadenopathy, skin lesions, and gastroesophlageal reflux” (PE-27; SE-4). Student’s congenital mitochondrial disease is progressive and according to Barbara Jean Hetherington, RPT, could be causing Student’s dysautonomia, persistent lymphadenopathy and chronic pain (SE-6).


5

Dr. Lovecky evaluated Student on January 14, 16, 21, 23, 30 and February 7, 2009 (PE-31).


6

The report indicates that answers to this inventory were based on observations of Student’s daily routines during the 2007-2008 school year.


7

This questionnaire seeks to gain information regarding a student’s “personal, social and work adjustment behaviors which relate to the individual’s ability to function autonomously in the community or work environment”. The evaluator relied on observations of Student during the 2007-2008 school year regarding completion of the Behavior Rating Scale (PE-15).


8

20 USC 1400 et seq .


9

MGL c. 71B.


10

Schaffer v . Weast , 126 S.Ct. 528 (2005) places the burden of proof in an administrative hearing on the party seeking relief.


11

See 20 USC 1415(d)(2)(A).


12

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. No challenge was raised on this issue at hearing.


13

The school district is also required to request a hearing if it is challenging the independent evaluation obtained by the parent on the basis of failure to meet agency criteria. 304 CFR.502(b)(2)(ii).


14

In Massachusetts, the agency responsible for setting the rates for independent evaluations is the Division of Health Care Finance and Policy Regulations.


15

In her submissions, Parent refers to adaptive physical education as “assisted” physical education. Wherever she uses the term assisted physical education, it is understood that she refers to adaptive physical education instead.


16

See In Re: Triton Regional School District , 13 MSER 380, 387 (2007).


17

The documents appear to be IEP meeting motes.


18

In Re: Boston Public Schools , 14 MSER 127, 135 (2008).


19

PE-17, PE-18, PE-19, PE-20, and PE- 21 include correspondence between Parent and Lexington dating back to May 2004, involving Parent’s request for Lexington to fund an independent neuropsychological evaluation of Student outside the rate setting rates, including Dr. Lovecky’s estimate of the length of time, proposed areas of evaluation and cost associated with her evaluation, and Lexington’s agreement to fund the evaluation within the parameters proposed by Dr. Lovecky on the basis of “extenuating circumstances.”


20

In her submission Parent makes reference to a 2008 settlement agreement between the Parties. The BSEA lacks jurisdiction to enforce settlement agreements, and more importantly, the issue of Dr. Lovecky’s evaluation has already been adjudicated as stated above.


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