COMMONWEALTH OF MASSACHUSETTS
BUREAU OF SPECIAL EDUCATION APPEALS
BSEA# 03-2903
IN RE: NATHANIEL1 v ATTLEBORO PUBLIC SCHOOLS
DECISION
This decision is issued pursuant to M.G.L. c.71B and 30A, 20 U.S.C.§1401 et seq ., 29 U.S.C. §794, and the corresponding regulations. A hearing occurred on May 30, 2003 at the Bureau of Special Education Appeals (BSEA) in Malden, MA.
Those present for all or part of the hearing were:
Mother
Mother’s Friend/Former Fiance
Thesa Axile Student Services Director; Attleboro Public Schools
Alan Dyl School Psychologist; Attleboro Public Schools
Steve German Special Education Director; Attleboro Public Schools
Ray Wallace Attorney for Parent
Kimberly Mucha Attorney for School District
Joan Beron Hearing Officer, BSEA
Gayle Ohman Court Stenographer, Catougno Court Reporting
The official record of the hearing consists of Parent’s Exhibits marked P1-P13 and School Exhibits marked S1-S18, Parent’s and School summary judgment briefs and Exhibits (marked PSJ and SSJ respectively) and approximately four hours2 of stenographic of recorded oral testimony. The record closed on June 26, 2003 after oral arguments were presented via telephone by both Parties.
ISSUES
I. Was Nathaniel a resident of Attleboro during the time period beginning at the end of the 2002-2003 school year (June 2002) through December 8, 2002?
II. When Nathaniel left Attleboro with his Mother during the summer of 2003, did Mother intend to return to Attleboro?
III. If so, was Attleboro responsible for funding the independent evaluation of Student?3
PARENT’S POSITION
Nathaniel and Mother have for the past six years spent every summer with her Friend and former Fiancé (hereafter Fiancé)4 in Pawtucket, R.I. and have returned to Attleboro at the beginning of the school year. Mother’s intent was to move with Nathaniel and Fiancé into his home in Pawtucket if Nathaniel was admitted to the vocational school there. If however, Nathaniel was not admitted to the vocational school, Mother intended to return to Attleboro and unilaterally place Nathaniel at School One in Providence, Rhode Island. Her intent was to request reimbursement from Attleboro because its IEP did not appropriately address Student’s nonverbal learning disability (NLD) and could not offer Student a free appropriate public education (FAPE) in the least restrictive environment (LRE). During the summer of 2003 Mother was diagnosed with a life threatening illness5 . She was not emotionally ready to return to Attleboro and remained with Fiancé so that he could take care of her and Nathaniel. In October 2003 Mother had surgery and subsequent treatment for her life threatening medical condition and was not physically or emotionally ready to return to Attleboro. She and Nathaniel did return to Attleboro on December 8, 2002 when Mother was physically ready to care for herself and her son. As such, Nathaniel’s stay in Rhode Island was for temporary respite and he remains a resident of Attleboro. Therefore Attleboro is responsible for funding the independent evaluation because it did not agree to pay for it and did not proceed to the Bureau within five days to show that its evaluation was comprehensive or appropriate.
SCHOOL’S POSITION
Attleboro had a TEAM meeting in May 2002 to develop an IEP for the 2002-2003 school year. Mother told Attleboro that she would be moving to Pawtucket to live with Fiancé and that she wanted Nathaniel to attend the vocational school in Pawtucket. In addition, in May 2002, Nathaniel told a substitute teacher that he could not remember his Attleboro address because it had been so long since he had lived there. As such, Nathaniel is not a resident of Attleboro. Therefore Attleboro is not responsible for funding an independent evaluation for Student (or reimbursing Mother for unilateral placement at School One if the facts so warrant).
FINDINGS OF FACT
1. Nathaniel (Nate) (born February 13, 1988) is a fifteen-year-old ninth grader who has been attending School One in Providence, Rhode Island since September 6, 2002 pursuant to Mother’s unilateral placement of him there (mother, P2). On August 23, 2002, Mother, through her attorney, informed Attleboro that she intended to enroll Nate at School One and was seeking reimbursement from Attleboro for this placement (Mother, see P2).
2. Nate received special education services in Attleboro from kindergarten. These services continued until Mother enrolled Nate in School One; ( see Summary judgement briefs Attleboro/Parent). Nate has been diagnosed with a nonverbal learning disability, ADHD, dyslexia and a generalized anxiety disorder and ODD (S18, Parent’s summary judgment brief, Dyl). Nate struggles with reading. He becomes frustrated easily and shuts down. Nate also has organizational deficits. In addition, Nate has social language issues, including difficulty picking up the subtleties in conversation (Dyl). He often can not answer simple questions and to avoid embarrassment will say whatever pops into his head (Mother, Fiancé).
3. On May 8, 2003 the TEAM convened to review school evaluations and develop an IEP for the 9 th grade (Mother, Axile, Dyl). Attleboro reported that Student’s negative behaviors had lessened in his behavioral program and that he had done better academically there (Axile). The TEAM agreed that Nate’s program should have a strong vocational component (Mother, Fiancé, Axile, Dyl). This TEAM meeting, unlike previous ones, was positive (Axile, Dyl).
4. Mother told the Attleboro members of the TEAM that she was engaged to Fiancé who lived in Pawtucket, Rhode Island and would be moving in with him when they got married (Axile, Dyl). Student had also told a substitute teacher in May 2002 that he could not remember his address because it had been so long since he lived there (S1). Attleboro therefore inferred that Mother and Fiancé would be married and had been or would be living together with Nate in Pawtucket before the start of the school year in September 2002 (Axile, see S2). There was however no wedding date set or given to the TEAM at that time (Mother, Fiancé, Axile, Dyl).
5. Mother told Attleboro that she and Nate would be in Pawtucket in the summer of 2002 (Dyl). She also told them that Nate would not be attending Attleboro in September (Axile). Attleboro therefore believed that Nate would be living in Pawtucket prior to the beginning of the school year (Axile, Dyl).
6. Attleboro staff however did not know that Nate and Mother had for the past few years spent each summer with Fiancé6 because Fiancé had more room and a pool7 and Nate could spend time with Fiancés’ fifteen year old son ( see Mother, Fiancé). Nate and Mother would then return home in September (Mother, Fiancé). During the summer Mother would continue to pay her rent, electricity, telephone and cable bills (Mother, see P13). Mother’s and Nate’s furniture and winter clothes would also be left in Attleboro as well as his computer and Play Station (Mother, Fiancé).
7. Attleboro also assumed that Nate would be attending Davies as a resident of Pawtucket but that there was a good possibility, due to the lateness of the application, that Nate would not be admitted or put on a waiting list (Axile, Dyl, see P2). It assumed that if this occurred Nate would be attending the Tolman High School because he would be living in Pawtucket (Axile, Dyl). Attleboro also knew however that if Mother remained in Attleboro there was a possibility that she would be seeking reimbursement for a unilateral placement because she has rejected IEPs since Nate has been in special education (Axile).
8. The TEAM discussed placements at the Davies Vocational School in Pawtucket, Rhode Island (Davies) and the Attleboro High School (Mother, Fiancé). Mother told the TEAM that if Nate was admitted to Davies, she would stay in Pawtucket but that Nate would not attend the Tolman High School (Tolman) in Pawtucket because it did not have much of a vocational component or the specialized services Nate required (Mother, Fiancé, Axile, Dyl, see P12). Fiancé informed Attleboro that they would look at other schools to meet his needs (Fiancé, Axile, Dyl). Attleboro agreed that Tolman would not meet his needs but that it was late in the year and most of the vocational schools had already started to get their lists together for the following year (Mother, Axile). Attleboro offered to make phone calls to assist in Student being considered for the program or moved up on the waiting list (Mother, Fiancé, Axile, Dyl). It also told Mother to let the Pawtucket school department know if Nate was going to be attending Davies since Davies is a regional vocational school (Dyl). Attleboro told Mother and Fiancé that if things did not work out at Davies they had a vocational program that they would recommend that Nate attend (Mother, Dyl).
9. Mother did not explore the vocational program in Attleboro because she did not think that Nate had not done well in previous Attleboro programs; (Mother). This was true despite improvement in the behavioral program he had been placed in five months previously; ( see Mother, Axile). Mother also did not think that Attleboro High School would meet his needs. Therefore Mother began exploring approved and unapproved private placements that could meet his needs (Mother). Attleboro recommended that Nate attend an open house for Attleboro High School (Mother, Fiancé, Axile, Dyl, see S8). He did not attend (Mother, Fiancé).
10. On May 14, 2002 Attleboro sent Mother an IEP designating a program for up to 25/45 periods per week in the alternative learning center (S8).8
11. On May 21, 2002 Mother signed a consent form for Nate’s records to be sent to the Pawtucket School Department so that he could be considered for Davies; see (S14). Mother listed Fiancés’ Pawtucket address as her address so that Nate could be considered for admission at Davies (Mother). Attleboro sent the records to Pawtucket on June 6, 2002 (S14). In June, 2002 Mother called Davies who told her that Nate had to be on a waiting list and enroll in Tolman until an opening occurred (Mother). Mother and Fiancé also went to Tolman and spoke to the special education teacher there and decided that Nate should not go there (Mother). The middle school principal offered to talk to the Tolman principal to help get Nate into Davies (Mother, Axile). Fiancé also talked to Dr. Dyl (the school psychologist) about enlisting his help to get Nate into Davies (Fiancé, Dyl). Attleboro’s efforts were not successful (Mother, Fiancé, Axile, Dyl). Student would also have to take a test in order to qualify for admission; (Mother). Mother determined that Davies was not an option for Nate and did not apply there (Mother, Fiancé). She continued to search for appropriate out of district schools for Nate. All the approved schools in Massachusetts did not have openings (Mother). Nate was accepted at School One in Providence, RI in August 2002. School One is not approved as a special education school (Mother, Axile). Mother however enrolled Nate there due to its small class size and special education services (Mother). Nate began attending there on September 6, 2002 (Mother, see P2). Mother did not inform Attleboro about her decision to not apply to Davies (Mother). Mother’s attorney informed Attleboro on August 21, 2002 that Student would be attending School One beginning September 6, 2002 and would be seeking reimbursement for this placement (P2, S3).
12. At the end of the school year in June 2002 Mother and Nate went to stay with Fiancé in Pawtucket taking only their summer clothes and personal items (Mother, Fiancé). Mother continued to pay her rent, electricity, telephone and cable bills ( see P13). In July Mother started having medical symptoms and went to her primary card physician. The physician sent Mother to a specialist in mid July. The specialist ran several diagnostic tests and surgical diagnostic procedures through July, August 2002 and mid September 2002 (Mother, P8). Although Mother was physically ready to return to Attleboro at the beginning of the school year she was not emotionally able to take care of herself or Nate (Mother). During that time Mother had nightmares, increased anxiety and panic attacks causing her to increase her medication. She was not able to concentrate or function well at work or with Nate or Fiancé (Mother, Fiancé). She spent most of her time at home in the bedroom or the bathroom and became extremely withdrawn (Fiancé). Fiancé took over the majority of the parenting and household tasks; Id.
13. In September 2002 Mother transferred her medical treatment to a hospital in Boston known for treating Mother’s medical condition (Mother). She had surgery to address her medical condition on October 18, 2002 and was ordered to remain in bed following this surgery for a minimum of six weeks (Mother, P10, P11, P12).
14. On September 6, 2002, Attleboro, in response to Mother’s request for reimbursement, requested that Mother’s attorney provide proof of residency (P3). Attleboro also requested information about why its program was not appropriate and requested permission to conduct a nueropychological evaluation (P3, S4).
15. On September 18, 2002 Mother consented to Attleboro’s request for evaluation and provided Attleboro with a copy of her utility bill and driver’s license listing her Attleboro address (P3, S12). Attleboro sent a truant officer to the Attleboro address in late September who made visits until mid November and found no one there (S5).
16. On October 10, 2002, Attleboro requested further proof of Nate’s residency. It did not as requested, provide Mother’s attorney what additional information it needed or give the attorney a policy for determining residency (P3, P7, S6).
17. On November 6, 2002, Mother, through her attorney, informed Attleboro that she and Nate were staying in Pawtucket while she recouperated from an illness and would remain there for an additional three to four weeks while she recovered from this illness. On that date Mother also requested an independent evaluation (P7, S8). The request was remade on December 5, 2002 (P12, S17). The Parties disagreed about whether Nate was a resident of Attleboro; see S9, S10, S11, S16; also see Briefs Parent and Attleboro.
18. Mother and Nate returned to their apartment in Attleboro on or about December 8, 2002. Fiancé did not feel that Mother was ready to return; however Mother returned to ensure that Attleboro provided Nate with an appropriate placement (Mother). Mother currently has no plans to live with or marry Fiancé or spend time with him in his home in Pawtucket for the summer of 2003 (Mother, Fiancé).
19. Parent filed a hearing request on January 10, 2003 seeking a determination that Attleboro was required to fund an independent evaluation. Attleboro did not agree to pay for the independent evaluation but did not request a hearing before the Bureau to determine if its evaluation was adequate or appropriate until it filed its Motion to Dismiss on February 3, 2003; see Record.
FINDINGS AND CONCLUSIONS
The Parties agree that Nate did not return to Attleboro in September 2002 and was not there when Parent made her request for an independent evaluation in November and December 2002. The issue in dispute is whether Nate resided in Pawtucket at the time that the independent evaluation was requested.9
Under IDEA, a local educational agency shall provide that all children -residing within the jurisdiction of the local education agency . . . – who are disabled . . . and are in need of special education and related services will be identified, located and evaluated…; 20 U.S.C. s. 1414(a)(1)(a); 34 C.F.R. s. 300.220 (emphasis added).
Under Massachusetts educational laws, a student has the right to attend the public school where he actually resides (emphasis added); M.G.L. c. 76 s. 5. Massachusetts law also provides that “the school committee of every city, town, or school district shall identify the school age children residing therein who have a disability, diagnose and evaluate the needs of such children, propose a special education program to meet those needs, provide or arrange for provision of such special education program, maintain a record of such identification, diagnosis, proposal and program actually provided and make such reports as the department may require”; G.L.c. 71B § 3, see also Northbridge v. Natick , 394 Mass. 70, 72, 474 N.E.2d 551 (1985).
As such, if Nate is not a resident of Attleboro, Attleboro is not fiscally or programatically responsible for Nate’s education including the funding of the independent evaluation. No one is disputing that Nate was residing within Attleboro when he lived with Mother in her apartment there. Being a resident in a community however does not mean that one can never temporarily leave. Residents may temporarily leave the communities where they live to go on vacation, for hospitalization, rehabilitation or respite or to visit or assist a family member or friend. In these situations they continue to remain residents of their community because no move has occurred. Here the evidence is credible that from June-September 2002 Nate went on vacation with his Mother as he did for the previous two or three years. Mother continued to pay the rent electricity, telephone and cable bills. She left the winter clothing, furniture, computer and Play Station. Mother did, during this time, investigate moving but did not do so because it was unlikely that Nate could attend the vocational school that could address his special needs. He continued to remain a resident of Attleboro.
The evidence is also credible that Mother was physically able to return to her home in Attleboro in September as planned. She was not however emotionally able to return to her home because of the evaluation and diagnosis or her life threatening illness and required someone to temporarily take care of her and Nate. That respite extended into early December 2002 because Mother was not physically able to care for herself or Nate after her surgery in October 2002. Nate remained in respite with Mother. The evidence is also credible that if emotionally and physically ready to do so Mother would have gone back to her apartment in Attleboro sooner so that she could pursue a FAPE for Nate. She took no actions indicating a move.
Even though this Hearing Officer has found that Nate is a resident of Attleboro, in so deciding, Attleboro’s evidence has been carefully considered. However, Attleboro’s belief that Student and Mother were intending to move prior to the request for an independent evaluation and notice of unilateral placement at School One in Providence was based upon lack of information regarding Student’s pattern of temporarily living elsewhere for the summer and assumptions about the date of Mother’s marriage to Fiancé. I further find that Nate’s statement regarding where he was living does not take into consideration Nate’s nonverbal learning disability and documented deficits in social language resulting in a student who often can not answer simple questions and will say whatever pops into his head to avoid embarrassment. As such, Attleboro has not, despite a well presented case, shown by the preponderance of the evidence, that Nate was not a resident of Attleboro.
INDEPENDENT EVALUATION ISSUES
Having determined that Nate has been (and remains) a resident of Attleboro, Attleboro must fund the independent evaluation. Mother did not make a request for an independent evaluation at the May 2002 TEAM meeting that reviewed Attleboro’s May evaluations. She was not required to do so. Mother’s August 2002 request for an independent evaluation was made in a timely manner. The School District is thereby obligated to respond in accordance with the requirements of state and federal law. This requires the district to either agree to pay for the independent educational evaluation or within five school days, proceed to the Bureau of Special Education Appeals to show that its evaluation was comprehensive and appropriate. 603 CMR 28.04(5) (d); see also 34 CFR s. 300.502 (b)(1)(I)(ii).
Once the School District received Mother’s request for an independent evaluation, it could do only one of two things: either proceed to the BSEA within five school days to show that its evaluation was comprehensive and appropriate or agree to pay for the evaluation; Hampden-Wilbraham Regional School District , 37 IDELR 20 (Crane).
Hearing Officer Crane noted that “The applicable regulations (603 CMR 28.04(5)(d)) contain within it the remedy (public funding of the evaluation) for failure to proceed in a timely manner to the BSEA.10 Hearing Officers in other jurisdictions have determined that failure to comply with requisite procedures relevant to an independent evaluation may result in a Hearing Officer’s ordering the school district to pay for that evaluation.” 11 ; see Wilbraham (supra).
There is no dispute that Attleboro failed to request a hearing to dispute Parent’s request for an independent evaluation and has failed to comply with the procedural requirements contained within 603 CMR 28.04(5)(d). Attleboro, by requesting further evaluation, has also not shown that its former evaluation was comprehensive. Attleboro must therefore pay for the independent psychological evaluation.
ORDER
Nate was (and continues to be) a resident of Attleboro. Attleboro has not as mandated by state or federal law proceeded in a timely manner to show that its evaluation was comprehensive and appropriate and has itself requested further evaluation. It must therefore must fund Mother’s independent evaluation.
By the Hearing Officer,
Joan D. Beron
Date: September 26, 2003
1
Nathaniel or Nate are pseudonyms used for confidentiality and classification purposes.
2
This includes a fire drill, lunch and rest breaks.
3
Parent filed a hearing request for reimbursement for an independent evaluation. Attleboro filed a motion to summary judgment alleging that Nathaniel was not a resident. Parent filed an opposition. Per the Parties request, a brief ruling was issued regarding the residency. The Parties intent was to use this ruling to aid in further negotiation regarding Parent’s request for reimbursement for a unilateral program with a decision to follow at the Parties request if they were unsuccessful in their negotiation. Attleboro subsequently requested clarification of the ruling to include a determination regarding whether it was responsible for the funding of an independent evaluation. That clarification was provided and will be further addressed in this decision.
4
Mother’s Friend will be referred to as Fiancé because he was, during the time period in question engaged to Mother and this status is relevant to the issue regarding Mother’s intent to return to Attleboro.
5
The Parties agree that Mother’s specific diagnosis and subsequent treatment are not relevant to the decision. Although the record contains more specificity Mother’s medical condition will be referred to as a life threatening illness.
6
Fiancé was not engaged to Mother during all of this time period.
7
The pool is only available during the summer months because it is not heated; see (Fiancé).
8
Although the TEAM meeting notes reflect a recommendation from the special education teacher for Wilson reading, no specialized services are reflected in the IEP nor does the IEP list any specific goals and objectives or accommodations to address any of his identified special needs; see S8. Nor does the IEP list any of the recommendations listed by Attleboro’s school psychologist in his May 1,3, 2002 assessment (S13).
9
The Parties agree that if Nate was a resident of Attleboro at the time that Mother requested an independent evaluation in November 2002 he was also an Attleboro resident when Mother requested reimbursement for her unilateral placement in August 2002.
10
See also the United States Department of Education’s comments regarding analogous federal regulations (34 CFR 300.502(b) (school district must pay for the independent evaluation or initiate a hearing “without unnecessary delay”): “if a public agency does not [request a hearing on the evaluation issue], it must provide the IEE [independent educational evaluation] at public expense”, 64 Federal Register 12607, column 3 (March 12, 1999).
11
The Basis School, Inc. , 32 IDELR 187, Ariz. SEA (2000); Harwood Union High School/Washington West Supervisory Union , 27 IDELR 908, Vt. SEA (1998); Dare County Public Schools , 27 IDELR 547, NC SEA (1997).