Neville v. Sutton Public Schools – BSEA # 07-7534



<br /> Neville v. Sutton Public Schools – BSEA # 07-7534<br />

COMMONWEALTH OF MASSACHUSETTS

BUREAU OF SPECIAL EDUCATION APPEALS

In Re: Neville1 v. Sutton Public Schools

BSEA # 07-7534

DECISION

This decision is issued pursuant to the Individuals with Disabilities Education Act (IDEA) (20 USC 1400 et seq .), Section 504 of the Rehabilitation Act of 1973 (29 USC 794), the state special education law (MGL c. 71B), the state Administrative Procedure Act (MGL c. 30A), and the regulations promulgated under these statutes.

A hearing was held on April 29, 2008 in Worcester, MA before William Crane, Hearing Officer. Those present for all or part of the proceedings were:

Student’s Mother

Student’s Father

Marsha Chaskelson Private Neuropsychologist

Kristen Esposito Balboni Director of Special Education, Hopkinton Public Schools2

Gina DeCaro Special Education Teacher, Sutton Public Schools

Elaine Valk Speech-Language Assistant, Sutton Public Schools

Jane Oleksyk Speech-Language Pathologist, Sutton Public Schools

Margo Austein Director of Special Education, Sutton Public Schools

Regina Tate Attorney for Sutton Public Schools

The official record of the hearing consists of documents submitted by the Parents and marked as exhibits P-1A through P-10B, with the exception of exhibits P-1A, P-1B, P-1C, P-4, P-5A, and P-5C which were excluded; documents submitted by the Sutton Public Schools (Sutton) and marked as exhibits S-1 through S-83, with the exception of exhibits S-29, S-30, and S-32 which were withdrawn by Sutton; and approximately one day of recorded oral testimony and argument.3 By agreement of the parties, the record also includes the entire transcript from the evidentiary hearing in a previous dispute between the parties in BSEA # 05-3840. As agreed by the parties, written closing arguments were due on June 12, 2008, and the record closed on that date.

I. Introduction

This dispute involves consideration of three alleged procedural errors involving Sutton’s responsibilities under the IDEA to (1) develop an IEP each year, (2) re-evaluate Student every three years, and (3) appropriately consider, through an IEP Team meeting, several educational evaluations obtained by Parents.

Sutton concedes that it did not develop the requisite IEP and did not perform the requisite re-evaluations in a timely manner, but takes the position that its actions were justified under the circumstances. Sutton further argues that the IEP Team appropriately considered each of Parents’ educational evaluations that it was required to consider.

Parents disagree, taking the position that Sutton’s failure to develop the IEP and its failure to perform certain evaluations violated the IDEA, were not excusable, and harmed their son’s education. Parents further argue that the IEP Team’s review of certain evaluations was incomplete and inadequate, and could not possibly have led to a fair consideration of their son’s special education needs and how they should be met.

Parents have privately placed their son since March 2005. Parents take the position that Sutton’s alleged procedural errors should result in reimbursement for Parents’ privately-obtained special education services for the 2006-2007 school year. Parents seek no other relief.

As explained in greater detail below, I find in favor of Sutton on all claims (1) because the parties entered into an agreement to defer both the development of the IEP and Student’s re-evaluations and (2) because Parents have not carried their burden of persuasion regarding their remaining procedural claims nor have they carried their burden regarding the appropriateness of their privately-obtained educational services.

II. ISSUES

The issues to be decided, as agreed by the parties and as ordered by the Hearing Officer,4 are the following:

1. Whether the Sutton Public Schools failed to conduct required evaluations of Student in advance of the Team Meeting held on May 25, 2006 and, if so, whether that failure resulted in the denial of a free, appropriate public education (FAPE) to Student during the 2006-2007 school year?

2. Whether the May 25, 2006 Team failed to consider relevant Student information presented to it by the Parents and, if so, whether that failure resulted in the denial of FAPE to Student during the 2006-2007 school year?

3. Whether subsequent to the May 25, 2006 Team meeting Sutton failed to issue an individualized education program (IEP) for the 2006-2007 school year and, if so, whether that failure resulted in the denial of FAPE to Student during the 2006-2007 school year?

4. Whether, as a result of Sutton’s action or inactions (described in the above three issues), the Parents are entitled to reimbursement of expenses they incurred in providing an alternate educational program to Student throughout the 2006-2007 school year?

III. PREVIOUS BSEA DECISION

A previous dispute in BSEA # 05-3840, resulting in a Decision issued on March 28, 2007, involved the same parties and similar issues to those in the instant dispute. The previous dispute was resolved after eight days of hearing in June, July, August, and October 2006 by BSEA Hearing Officer Sara Berman. The Decision in that case identified the following issues that are relevant to the instant dispute:

1. Whether the two IEPs proposed for the 2005-2006 school year were reasonably calculated to provide Student with FAPE.

2. Whether the services obtained by Parents from March 2005 forward are appropriate and provide FAPE, such that Sutton should reimburse Parents for providing those services in the past and fund these services prospectively.5

Through her Decision, Hearing Officer Berman found that the IEPs developed by Sutton for the 2005-2006 school year were appropriate to meet Student’s special education needs and, therefore, Sutton was not responsible for funding the unilateral placement developed for Student by his Parents.

Although that Decision did not make specific findings concerning the IEP for the 2006-2007 school year or Sutton’s proposed educational program for that school year, the Order (at the end of the Decision) concluded that “on the basis of the evidence now on the record” Sutton was neither obligated to fund Parents’ unilateral placement and services, nor obligated to place Student in Parents’ program prospectively.6

The Hearing Officer considered Sutton’s allegation that Parents’ unilateral placement had deprived Student of FAPE, and the Hearing Officer reviewed Student’s privately obtained services and educational progress therein for this purpose. The Hearing Officer concluded that Sutton had not carried its burden of persuasion to establish that Parents’ privately-arranged services deprived Student of FAPE.7

IV. FACTS

A. Student Profile

Student, who is 11 years old and is in 5 th grade, lives with his Parents in Sutton, MA. Student has received his entire educational program through privately-arranged special education services since March 2005 when Parents withdrew him from the Sutton Public Schools. Testimony of Mother; exhibit S-69.

Student has many strengths. He is described as delightful, friendly, polite, happy, and endearing. Student also has complex and significant neurological deficits that include verbal apraxia and a sensory integration disorder that have had a substantial and pervasive effect on his development. Student has delayed expressive language as well as a receptive language deficit, an auditory processing deficit, and an ocular motor deficit. Exhibits P-2B, P-2C, P-2D, P-2E, S-51, S-52, S-53, S-54, S-69.8

B. Educational Services Proposed and Provided for the 2006-2007 School Year

The educational services proposed by Sutton for the 2006-2007 school year, as reflected in the IEPs for the 2005-2006 school year (no IEP was generated for the 2006-2007 school year and therefore the most recent IEP was for the 2005-2006 school year), included:

· consultation services for several hours per week (the IEP is unclear as to the precise amount of consultation services);

· the following services to be provided in the general education classroom: 1×30 minutes per week of physical therapy and 10 x 45 minutes per week of “social;” and

· the following services to be provided in the language based classroom and/or therapy rooms: speech/language of 1×30 minutes per week and 3×30 minutes per week; speech/apraxia of 4 x 30 minutes per week and 3 x 30 minutes per week; occupational therapy services for 2 x 30 minutes per week and 1 x 30 minutes per week; language arts for 5 x 90 minutes per week, math for 5 x 75 minutes per week, and physical therapy services for 1 x 30 minutes per week.

Exhibit S-31.9

The education services actually provided by Parents during the 2006-2007 school year included Lindamood Bell services (15 hours per week), occupational therapy (3 hours per week), speech-language therapy (2 to 3 hours per week), tutoring (approximately 4.5 hours per week), and informal opportunities for recreation. Testimony of Mother.

C. Documents Regarding Re-Evaluation and IEP for the 2006-2007 School Year

Several documents are relevant to the question of whether the parties agreed to defer the three-year re-evaluation and the IEP for the 2006-2007 school year.

By letter dated February 3, 2006 Sutton’s attorney wrote to Parents’ attorney for the purpose of setting forth Sutton’s understanding of their discussion regarding deferral of the otherwise required three-year re-evaluation, IEP Team meeting, and IEP for the 2006-2007 school year. The letter provided in relevant part as follows:

The purpose of the letter is to confirm our discussion on Monday, January 30, 2006 that Sutton can delay the reevaluation which is currently due to be completed. Both of us agreed that it would be in [Student’s] best interest to delay the reevaluation until [Student’s] placement and other information is more settled, so that [Student] does not have to undergo unnecessary testing and disruption.

I would also like to confirm that, although the IEP is due to expire in June, because the parties are attempting to resolve this case, no TEAM meeting or IEP will be developed until such time as it becomes clear that the parties either definitely have an agreement/placement or the exact opposite is true, namely, the parties do not agree at all on prospective placement. Therefore, Sutton would then write an IEP for its proposed placement, if it were different from the public schools.

Exhibit S-38 (emphasis supplied).

Parents’ attorney’s only written response to Sutton’s February 3 rd letter was a letter to Sutton’s attorney dated May 15, 2006, in which Parents’ attorney requested that an IEP Team meeting occur. This letter stated in relevant part: “Concerning the issue of reconvening the team, the Parents do not waive this meeting.” No reference was made in the May 15 th letter to an IEP for the 2006-2007 school year or to Sutton’s re-evaluation of Student. Exhibit S-44.

In a letter dated June 13, 2006 and addressed to the Sutton Director of Special Education (Dr. Balboni), Father requested Sutton to make changes to its proposed educational program for his son. The letter did not request that Sutton issue an IEP for the 2006-2007 school year, nor did the letter request that Sutton re-evaluate Student. Parents were represented by an attorney at this time. Exhibit P-9A.

Parents did not otherwise respond to Sutton’s February 3 rd letter until Parents filed their amended Hearing Request with the BSEA on June 19, 2007 and until Parents wrote a letter to the Hearing Officer dated November 20, 2007 (the letter outlined the issues to be addressed at Hearing). At these times, Parents were no longer represented. Through their amended Hearing Request , Parents notified Sutton for the first time of Parents’ position that Sutton should have written an IEP for the 2006-2007 school year. Through their letter of November 20, 2007, Parents notified Sutton for the first time of Parents’ position that Sutton had failed to adequately evaluate Student for the 2006-2007 school year.10

D. May 25, 2006 IEP Team Meeting

Much of the instant dispute pertains to what happened prior to, during, and after an IEP Team meeting on May 25, 2006. The purpose of the May 25 th Team meeting was to review specific evaluations that were privately obtained by Parents and that had been shared with Sutton prior to the meeting. Testimony of Balboni; exhibit P-7.

Present at this Team meeting were the following persons:

Student’s Mother

Student’s Father

Marsha Chaskelson Private Neuropsychologist

Tracy Kolofsky Regular Education Teacher, Sutton Public Schools

Gina DeCaro Special Education Teacher, Sutton Public Schools

Kathleen Lane Special Education Teacher, Sutton Public Schools

Elaine Valk Speech-Language Assistant, Sutton Public Schools

Jane Oleksyk Speech-Language Pathologist, Sutton Public Schools

Cynthia Beaudin Occupational Therapist, Sutton Public Schools

Kirsten Esposito Balboni Director of Special Education, Sutton Public Schools

Regina Tate Attorney for Sutton Public Schools

Exhibit S-83.

As a result of that meeting, the Sutton members of the Team concluded that no changes to the IEP (either with respect to educational services or goals) were warranted, and no new or amended IEP was appropriate. Testimony of Balboni; exhibits P-5B, P-8 (page 2), S-22, S-31, S-55 (page 2).

V. DISCUSSION

A. Introduction

Student is an individual with a disability, falling within the purview of the Individuals with Disabilities Education Act (IDEA)11 and the state special education statute.12 The IDEA was enacted “to ensure that all children with disabilities have available to them a free appropriate public education [FAPE] that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living.”13 Neither Student’s eligibility status nor his entitlement to FAPE is in dispute.

All of Parents’ claims are procedural in nature. The IDEA, as amended in 2004, requires that a Hearing Officer’s decision be made on substantive grounds based on a determination of whether the student received FAPE.14 The IDEA further provides when a Hearing Officer may determine that a student was denied FAPE on the basis of a procedural violation:

Procedural issues. In matters alleging a procedural violation, a hearing officer may find that a child did not receive a free appropriate public education only if the procedural inadequacies–           (I) impeded the child’s right to a free appropriate public education;
(II) significantly impeded the parents’ opportunity to participate in the decisionmaking process regarding the provision of a free appropriate public education to the parents’ child; or (III) caused a deprivation of educational benefits.”15

In the instant dispute, Parents have the burden of persuasion with respect to each of the issues in dispute.16

B. IEP for the 2006-2007 School Year

I first consider the question of whether, subsequent to the May 2006 Team meeting, Sutton failed to issue an individualized education program (IEP) for the 2006-2007 school year and, if so, whether that failure resulted in the denial of FAPE to Student. Sutton concedes that it has not issued an IEP for the 2006-2007 school year. I now consider whether this was justified.

I note, at the outset, that the “ centerpiece of the [IDEA’s] education delivery system” is each student’s IEP.17 A student’s right to FAPE is assured through the development and implementation of the IEP.18 The IDEA makes clear that a school district has a responsibility to conduct an annual review of an IEP and prepare a new IEP for the next year.19 The process of annual IEP review and possible modification must be continued by a school district during an appeal to the BSEA.20 Failure to propose a current IEP, in and of itself, may be sufficient to result in a denial of FAPE.21

For purposes of this issue, Parents focus on the IEP Team meeting held on May 25, 2006. Parents take the position that immediately following this meeting, Sutton had a responsibility to issue a new IEP for the 2006-2007 school year.

At the time of the May 25 th Team meeting, Student had a current IEP, which was for the period 6/22/05 to 6/22/06. The purpose of the May 25 th Team meeting was not to conduct an annual review, but rather to review specific evaluations that were privately obtained by Parents. As a result of that meeting, the Sutton members of the Team concluded that no changes to the IEP (either with respect to educational services or goals) were warranted, and no new or amended IEP was appropriate. Testimony of Balboni; exhibits P-5B, S-22, S-31.

Although Parents have concerns about the meeting itself (discussed separately below), Parents point to no requirement (and I am aware of none) that would require that a new IEP be issued immediately following the May 25 th IEP meeting since the meeting was not for the purpose of generating a new IEP and the IEP Team did not propose any changes to the IEP. The more substantive claim made by Parents is that Sutton has not, at any time, issued an IEP for the 2006-2007 school year. Sutton concedes that it is has never issued an IEP for that school year. I now consider whether Sutton’s actions were justified.

There is persuasive evidence that prior to the 2006-2007 school year, the parties were represented by attorneys22 who considered the question of whether an IEP for the 2006-2007 school year should be issued by Sutton. The attorneys’ understanding of Sutton’s responsibility to propose an IEP for the 2006-2007 school year is reflected in Sutton’s attorney’s letter, dated February 3, 2006. The letter, which is addressed to Parents’ attorney, provided in relevant part as follows:

The purpose of the letter is to confirm our discussion on Monday, January 30, 2006 that Sutton can delay the reevaluation which is currently due to be completed. Both of us agreed that it would be in [Student’s] best interest to delay the reevaluation until [Student’s] placement and other information is more settled, so that [Student] does not have to undergo unnecessary testing and disruption.

I would also like to confirm that, although the IEP is due to expire in June, because the parties are attempting to resolve this case, no TEAM meeting or IEP will be developed until such time as it becomes clear that the parties either definitely have an agreement/placement or the exact opposite is true, namely, the parties do not agree at all on prospective placement. Therefore, Sutton would then write an IEP for its proposed placement, if it were different from the public schools.

Exhibit S-38 (emphasis supplied). The record includes facsimile transmission confirmations that on February 5, 2006, Sutton’s attorney sent her February 3, 2006 letter to (and it was received by) Parents’ attorney and Sutton’s then Director of Special Education (Balboni). Exhibit S-38.

The clear implication of this letter is that it was intended by Sutton’s attorney to confirm what she believed to be an agreement between the parties, reached during her conversation on January 30, 2006 with Parents’ attorney, that Sutton would be deferring the development of an IEP for the 2006-2007 school year until the negotiation/resolution process had been completed.

Ms. Balboni testified that it was her understanding (as a result of conversations at that time with Sutton’s attorney) that the attorneys had agreed that Sutton need not issue a new IEP for the 2006-2007 school year, and, for this reason, no new IEP was issued. Testimony of Balboni.

Sutton’s attorney’s letter of February 3, 2006 (quoted above) stated an understanding that the parties were waiving an IEP Team meeting, in addition to the understanding that the parties were deferring an IEP for the 2006-2007 school year. Through a letter to Sutton’s attorney dated May 15, 2006, Parents’ attorney requested that an IEP Team meeting occur, presumably to review the results of Parents’ evaluations. The letter states in relevant part: “Concerning the issue of reconvening the team, the Parents do not waive this meeting.” The record indicates that the May 15 th letter was Parents’ attorney’s only written response to Sutton’s attorneys’ February 3, 2006 letter. The May 15 th letter makes no reference to the development of a written IEP for the 2006-2007 school year. Exhibit S-44.

During her opening statement in the evidentiary hearing in the previous dispute in BSEA # 05-3840, Sutton’s attorney made reference to the agreement between the parties as follows:

Then I also think that one of the questions that the hearing officer needs to address or maybe we need to discuss and talk about is going forward this case originated as a unilateral placement retroactive reimbursement case. The IEP has expired . The re-evaluation was supposed to have been done . Both parties agreed to delay everything because we were scheduled to go to hearing . I’m just identifying that as an issue that’s going to be needing to be addressed in terms of going forward.

BSEA # 05-3840 transcript, vol. 1, pp. 50-51 (emphasis supplied).

Sutton’s opening argument in BSEA # 05-3840 preceded Parents’ opening argument. I am not aware of any place in the transcript from BSEA # 05-3840 where Parents, either directly or through their attorney, indicate any disagreement with the above-quoted statement by Sutton’s attorney that the “parties agreed to delay everything [including the expired IEP and re-evaluations] because we were scheduled to go to hearing.”

In the last sentence of the March 28, 2007 Decision issued in BSEA # 05-3840, Hearing Officer Berman addressed the question of development of a new IEP as follows:

Sutton shall immediately notify the Parents of their rights to evaluations and a new IEP based on current information per federal and state statutes and regulations, and shall proceed with same upon receipt of parental consent.23

This chain of events makes clear that Sutton had an understanding of the parties’ agreement to defer the issuance of an IEP for the 2006-2007 school year, that this understanding was communicated to Parents and their attorney on at least two separate occasions, and that Parents and their attorney did not disagree with this understanding.

I next consider the context within which this agreement was made.

During the time period January 2006 to March 2007 (when a decision in the previous dispute was issued), the parties were before the BSEA with respect to the appropriateness of Sutton’s proposed special education program for Student and the appropriateness of Parents’ privately-obtained program, including the educational services which Parents sought for the 2006-2007 school year.24 Correspondence between the parties makes clear that the attorneys, as well as Father and the Sutton Director of Special Education (Dr. Balboni), were engaged in discussions and negotiations for the purpose of seeking to agree what services Sutton would propose for the remainder of the 2005-2006 school year as well as for part or all of the 2006-2007 school year. Exhibits P-9A P-9B, S-33, S-34, S-35, S-36, S-37, S-38, S-39, S-44, S-45, S-56, S-57, S-58, S-61.

Notwithstanding these on-going discussions and negotiations between the parties, it was not until June 19, 2007, through their filing of an amended Hearing Request in the instant dispute, that Parents notified Sutton for the first time of Parents’ position that Sutton should have written an IEP for the 2006-2007 school year. In other words, from February 2006 until June 2007, Sutton did not develop an IEP for the 2006-2007 school year yet neither Parents nor their attorney requested that an IEP be developed, nor did they object to Sutton’s not having developed the IEP.25

An IEP serves the important purpose of providing a written statement of what a school district believes is appropriate for the student and what the school district is prepared to provide to a student over the next year or so. In addition, the process of developing the IEP provides an opportunity for the parents to meet (and participate in a meaningful way) with those educational professionals who know the student’s educational needs for the purpose of discussing and determining how those needs should be met.26

Had the IEP Team met and developed an IEP without the parties having first resolved their substantive differences, it is likely that the IEP would have been substantially the same as the previous IEP for 2005-2006 school year, Parents would have rejected this IEP, and Parents would have continued to provide privately all of Student’s special education and related services. Testimony of Mother, Balboni; exhibits P-8; S-55, page 2 (after considering Parents’ evaluations, Team concluded that no changes would be made to the IEP).

Within this context, it was reasonable for the parties to conclude that it would be best to defer the development of an IEP for the 2006-2007 school year until either the parties had successfully completed their negotiations regarding the appropriate special education and related services for Student or, in the event negotiations did not resolve the dispute, the BSEA Hearing Officer had issued her decision addressing Parents’ claims and determining the appropriateness of Sutton’s most recent IEP. An IEP would then be written to reflect the negotiated educational services or the educational services determined to be appropriate by the BSEA Hearing Officer. Sutton’s attorney’s letter of February 3, 2006, quoted above, reflects this perspective. Exhibit P-38.

For the above-discussed reasons, I find that the February 3, 2006 letter reflects an oral agreement between the parties, and through this agreement, Parents waived their right to the timely development of a new IEP for the 2006-2007 school year. I further find that from the perspective of each party, deferral of the development of this IEP was reasonable and did not prejudice Parents’ and Student’s right to receive a free appropriate public education.

Parties to a dispute before the BSEA may enter into an agreement, pursuant to which they change their obligations and responsibilities under state and federal special education law. If the agreement relates to rights and responsibilities that fall within the purview of the Hearing Officer (and which are defined within the IDEA as the “ the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to such child”27 ), the Hearing Officer may consider the agreement and determine whether and to what extent the agreement alters the rights and responsibilities of the parties with respect to a student’s special education services and related procedural protections.28 In contrast, the Hearing Officer typically would not have the authority to order the parties to implement an agreement, just as the Hearing Officer would not have the authority to require the parties to implement an IEP.29 Although the First Circuit has not squarely addressed the question of a Hearing Officer’s authority to consider an agreement, the Court has concluded that an agreement between the parties may alter their rights and responsibilities under the IDEA, thereby implicitly requiring a Hearing Officer to consider an agreement in order that he or she aligns his or her decision with a federal court’s understanding of the rights and responsibilities of the parties.30

I therefore consider the parties’ agreement to defer the development of an IEP for the 2006-2007 school year.

In addition, I note that the only relief sought by Parents is reimbursement for privately-obtained educational services. Reimbursement is an equitable remedy . The BSEA Hearing Officer has the responsibility to consider, among other things, the reasonableness of the parties’ actions in determining whether to order reimbursement.31 Consideration of the equities leads to a conclusion that Parents would not be entitled to reimbursement even were I to find that Sutton violated their right to receive an IEP for the 2006-2007 school year. My reasoning follows.

In the event that Sutton’s attorney’s February 3, 2006 letter represents only Sutton’s understanding (rather than an agreement between the parties), then Parents, through their attorney, were placed on notice and would have been expected to advise Sutton if Sutton’s understanding (that Parents were assenting to deferral of the IEP for the 2006-2007 school year) were incorrect. Until receiving such notification from Parents, it was reasonable for Sutton to rely on its understanding, as reflected within its February 3, 2006 letter to Parents’ attorney.

In contrast, Parents’ position is patently unreasonable. Essentially, Parents’ position is that they were entitled simply to ignore the February 3, 2006 letter as well as Sutton’s opening statement in the previous BSEA dispute (quoted above) and then on June 19, 2007 assert for the first time their claim that Sutton violated their rights by not having developed an IEP for the previous school year. Parents’ inaction in not responding to Sutton’s attorney’s letter of February 3, 2008 directly caused Sutton not to develop an IEP for the 2006-2007 school year. This is sufficient to preclude reimbursement to Parents.32

Based upon this analysis, I find that Sutton was not required to develop an IEP for the 2006-2007 school year on the basis of an oral agreement between the parties. I further find that the lack of an IEP for the 2006-2007 school year did not impede Student’s right to FAPE, did not significantly impede Parents’ opportunity to participate in the decision-making process regarding the provision of FAPE, and did not cause a deprivation of educational benefits. I further find that equitable considerations preclude Parents from obtaining reimbursement because their inaction directly caused Sutton not to develop the IEP .

C. Re-Evaluation of Student

The second issue is whether Sutton failed to conduct required evaluations of Student in advance of the Team Meeting held on May 25, 2006 and, if so, whether that failure resulted in the denial of FAPE to Student during the 2006-2007 school year. Parents take the position that Sutton failed to conduct the required reevaluations of Student in advance of the May 2006 Team Meeting, thereby denying their son FAPE.

Every three years, or sooner if necessary, a school district must, with parental consent, conduct a full three-year re-evaluation.33 As of May 2006, Sutton’s most recent evaluations occurred in January 2003 (speech language and occupational therapy evaluations), and January 2004 (educational assessment).

Parents take the position that re-evaluations should have occurred prior to the May 25, 2006 IEP Team meeting. The issue in the instant dispute has been framed in these terms. However, it is not disputed that the May 25 th meeting was not for the purpose of conducting an annual review, during which it would be appropriate to consider Sutton’s three-year re-evaluations, but rather the IEP Team meeting was only for the purpose of considering Parents’ private evaluations and determining whether any changes to the IEP should be made as a result. Testimony of Balboni; exhibit P-7 (Sutton’s written agenda for the May 25 th Team meeting).

Parents’ claim fails on this basis. However, Sutton concedes that three-year re-evaluations were due to be completed (but were not) during the spring of 2006. This presents the more substantive question – that is, whether Sutton was justified in not conducting the three-year re-evaluations in a timely manner. I now consider whether Sutton’s conduct was justified.

Sutton’s attorney sent a letter to Parents’ attorney, dated December 2, 2005, stating that Student was due to be re-evaluated by Sutton in the spring of 2006 and suggesting that the re-evaluations be delayed. This letter stated, in relevant part, as follows:

Sutton is well aware of its obligation to reevaluate [Student]. However, Sutton is also aware that [Student] has been subjected to many evaluations and observations by others outside Sutton Public Schools. Sutton would suggest, with the parents’ consent, that [Student’s] reevaluation be moved to a time after he has gotten involved in a school program. Sutton would suggest that it be done at least no sooner than approximately three months after [Student] has started to participate in a program, so that [Student] can have the time necessary to adjust to a school setting again, and in particular, a particular school setting. In addition, Sutton would suggest that the staff of whatever program is identified for [Student], conduct those parts of the reevaluation for which they have the requisite qualified staff. Let me know if this suggestion is acceptable to parents.

Exhibit S-35. See also exhibit S-31 (first page)(IEP indicating that Student’s re-evaluation was scheduled for June 2006).

Reference within the December 2, 2005 letter to previous evaluations by others outside Sutton Public Schools presumably referred to the evaluations that Parents had privately arranged and may have also anticipated additional evaluations that Parents planned for their son. By the date of the May 2006 Team meeting, Parents’ private evaluations included a neuropsychological evaluation completed by Dr. Chaskelson in January 2006, a phonology/childhood apraxia of speech evaluation conducted Dr. Velleman in November 2005, occupational therapy and dynamic listening systems evaluations conducted by Ms. Carley of Project CHILLD (Center for Holistic Integration, Listening, Learning and Development) in February 2006, an eye care examination conducted by Dr. Thamel in June 2005, a receptive language evaluation conducted by Ms. Urquhart in January 2006, and a quantitative EEG analysis conducted by Dr. Thatcher in April 2006. Written progress updates for Student were also completed by the Lindamood Bell program on a regular basis. During this time, all of Student’s educational services were being privately provided by Parents and none of Student’s educational services placed him within a school setting. Testimony of Parent; exhibits P-2B, P-2C, P-2D, P-2E, P-2F, P-3, S-51, S-52, S-53, S-54.

As noted in the above analysis regarding deferral of the IEP, Sutton’s attorney sent Parents’ attorney a letter, dated February 3, 2006, which provided in relevant part as follows:

The purpose of the letter is to confirm our discussion on Monday, January 30, 2006 that Sutton can delay the reevaluation which is currently due to be completed . Both of us agreed that it would be in [Student’s] best interest to delay the reevaluation until [Student’s] placement and other information is more settled, so that [Student] does not have to undergo unnecessary testing and disruption.

Exhibit S-38 (emphasis supplied).

I also consider the additional evidence discussed above relative to Sutton’s deferring the development of an IEP but applicable equally to the issue of three-year re-evaluations – that is, (1) Parents’ attorney’s responsive letter of May 15, 2006, which makes no reference to three-year reevaluations, (2) Sutton’s attorney’s opening statement in the previous dispute, which references her understanding regarding the timely completion of re-evaluations, and (3) the March 28, 2007 Decision in the previous dispute which addressed the issue of further evaluations .

This chain of events makes clear that Sutton had an understanding of the parties’ agreement to defer further evaluation of Student, that this understanding was communicated to Parents and their attorney on at least two separate occasions, and that Parents and their attorney did not disagree with this understanding.

It was not until Parents’ letter to Hearing Officer Byrne, dated November 20, 2007 (in which Parents outlined the issues to be addressed at Hearing) that Parents notified Sutton for the first time of Parents’ position that Sutton had failed to evaluate adequately Student’s needs for the 2006-2007 school year; and even through this letter, Parents did not make clear their essential claim, which is that Sutton improperly failed to conduct the mandatory three-year re-evaluation of Student.34 In other words, from February 2006 until November 2007, neither Parents nor their attorney requested that further evaluations be completed, nor did they object to Sutton’s not having further evaluated their son. During this same time period, there were numerous communications and negotiations between the parties relevant to Student’s education. Exhibits P-9A P-9B, S-33, S-34, S-35, S-36, S-37, S-38, S-39, S-44, S-45, S-56, S-57, S-58, S-61, S-67, S-71.

A three-year re-evaluation serves the important purpose of ensuring that a school district periodically conducts a thorough review of a student’s special education needs, which may change over time, so that the school district’s special education and related services can be adjusted as necessary to be responsive to the student’s current educational needs.

Parents’ private evaluations and progress updates (referenced above) provided a comprehensive review of Student’s educational needs and how they should be met. Within this context, it is unclear what purpose would have been served by the additional three-year evaluations to be performed by Sutton. Duplicative testing would likely have been counter-productive. I find that it was reasonable for the parties to conclude that the completion of the three-year re-evaluations prior to resolution of Student’s disputed educational placement (including Student’s actual placement back into a school setting) would not benefit Student.35

As discussed above in part B of this section of the Decision, the parties may agree to change their rights and responsibilities under the IDEA. For the above-discussed reasons , I find that the parties entered into an agreement to delay the three-year re-evaluations and to do so was reasonable under the circumstances of this particular dispute.36

Parents are seeking only reimbursement. As discussed above in part B of this section of the Decision, reimbursement is an equitable remedy. Consideration of the equities leads to a conclusion that Parents are not entitled to reimbursement. My reasoning follows.

In the event that the February 3, 2006 letter represents only Sutton’s understanding (rather than reflects an oral agreement among the parties), then I find that Parents, through their attorney, were placed on notice and would have been expected to advise Sutton if Sutton’s understanding (that Parents were agreeing to delay the three-year re-evaluation) was incorrect. Until receiving such notification from Parents, it was reasonable for Sutton to rely on its understanding, as reflected within its February 3, 2006 letter to Parents’ attorney, that re-evaluation need not occur along the normal time-frames for a three-year re-evaluation.

In contrast, Parents’ position here too is patently unreasonable. Essentially, Parents’ position is that they were entitled simply to ignore the February 3, 2006 letter and then, through their letter of November 20, 2007 advise Sutton for the first time of their claim that Sutton violated their rights by not appropriately evaluating Student during the 2006-2007 school year. Parents’ inaction in not responding to Sutton’s attorney’s letter of February 3, 2008 directly caused Sutton not to re-evaluate Student or conduct other evaluations of Student.37

Based upon this analysis, I find that Sutton was not required to re-evaluate Student or conduct additional evaluations during the spring of 2006 because of an oral agreement between the parties. I further find that equitable considerations preclude Parents from obtaining reimbursement because Parents’ actions directly caused Sutton not to re-evaluate or conduct additional evaluations of Student.

D. IEP Team Meeting on May 25, 2006

The third issue is whether the May 25, 2006 Team failed to consider relevant Student information presented by the Parents and their expert and, if so, whether that failure resulted in the denial of FAPE to Student during the 2006-2007 school year. Parents take the position that Sutton failed to comply with relevant special education laws and regulations in two respects – that is, at the May 2006 Team meeting, Sutton declined to consider certain progress reports relative to their son that were prepared by Lindamood Bell; and during its May 2006 Team meeting, Sutton did not appropriately consider certain evaluations relative to Student.

I first consider the issue regarding IEP Team review of the Lindamood Bell progress reports. Massachusetts special education regulations make clear Sutton’s responsibility to convene an IEP Team meeting for purposes of considering an independent evaluation – that is, an evaluation obtained by Parents. Pursuant to the regulations, IEP Team review must occur within 10 school days after Sutton’s receipt of the evaluation.38 The regulations do not specifically address the review of progress reports.

Instead, the regulations require that a school district review a student’s progress at least annually.39 Presumably, any progress reports would be reviewed at this time. By distinguishing between progress reports and evaluations, the regulations make clear that the regulatory requirements applicable to evaluations are separate and distinct from the regulatory requirements applicable to progress reports.

I conclude from this review of the special education regulations applicable to evaluations and progress reports that progress reports are to be reviewed by the IEP Team during the annual meeting for purposes of developing a new IEP, rather than pursuant to the regulatory requirements relative to independent evaluations.

Accordingly, I find that Sutton was under no legal obligation to have a review of the Lindamood Bell progress reports during the May 25, 2006 meeting, which meeting was for the sole purpose of reviewing Parents’ evaluations. Exhibit P-7 (agenda for the meeting).

I now turn to the question of whether during the May 25, 2006 IEP Team meeting, Sutton properly considered certain evaluations. The following six evaluations are relevant to this inquiry:

1. a neuropsychological evaluation completed by Dr. Chaskelson in January 2006,

2. a phonology/childhood apraxia of speech evaluation conducted Dr. Velleman in November 2005,

3. occupational therapy and dynamic listening systems evaluations conducted by Ms. Carley of Project CHILLD in February 2006,

4. an eye care examination conducted by Dr. Thamel in June 2005,

5. a receptive language evaluation conducted by Ms. Urquhart in January 2006, and

6. a quantitative EEG analysis conducted by Dr. Thatcher in April 2006.

At the evidentiary Hearing, Parents stipulated that their claim relates only to the evaluations that were placed into evidence by Parents, which are the five evaluations numbered one through four and numbered six, above. Exhibits P-2A, P-2B, P-2C, P-2D, P-2E, P-2F, S-51, S-52, S-53, S-54.

Parents provided evaluations numbered one through four, above, to Sutton by letter dated May 2, 2006. Evaluation numbered six, above, was provided by Parents to Sutton at the beginning of the IEP Team meeting on May 25, 2006. Sutton’s written agenda for the May 25 th Team meeting listed (under the heading “Evaluations to be reviewed”) the evaluations numbered one through five above. Testimony of Father; exhibit P-7.

Sutton agrees that it did not review evaluation numbered six, above, ( the quantitative EEG analysis) at the May 25, 2006 IEP Team meeting. I first consider whether Sutton should have reviewed this evaluation at the Team meeting. At the evidentiary Hearing, Father conceded that this evaluation was provided to Sutton, for the first time, at the beginning of this meeting. The Massachusetts special education regulations require only that an independent education evaluation be reviewed by the IEP Team within 10 school days of the school district’s receipt of the evaluation.40 For this reason, the IEP Team was not required to consider the evaluation at the May 25 th meeting.41

I next consider whether Sutton properly reviewed the remaining evaluations through the IEP Team process.

It is not disputed that at its May 25, 2006 meeting, the IEP Team considered, to at least some degree, each of the remaining five evaluations. The question remains whether the Team’s consideration was sufficient. Parents take the position that Sutton did not have the appropriate personnel at the Team meeting to understand, interpret, and apply what was stated in four of the five evaluations considered by the Team, and that the Team review was perfunctory and predetermined.

I briefly review the evidence relevant to this issue. The Director of Special Education (Dr. Balboni) who chaired the meeting, testified in the previous dispute in BSEA # 05-3840 that several Team members were requested by Dr. Balboni to review certain evaluations prior to the meeting, that various members of the Team reported to the Team regarding certain evaluations, and that all five of the evaluations (numbered one through five above) were considered and reviewed at the May 25 th meeting. BSEA # 05-3840 transcript, vol. 1, pp. 148-49; vol. 2, pp. 60-61.

Dr. Balboni testified in the instant dispute that prior to the May 25 th Team meeting, she reviewed all of the evaluations that were considered at the meeting. Testimony of Balboni.

Sutton’s speech-language pathologist (Ms. Oleksyk) testified in the previous dispute in BSEA # 05-3840 that she had the opportunity to review all five of the evaluations; that specifically, prior to the meeting she reviewed the phonology/childhood apraxia of speech evaluation conducted Dr. Velleman in November 2005; and that at the meeting she reported to the Team regarding the apraxia goals in the evaluation report and Student’s strengths and weaknesses regarding speech and language, but did not address “any linear decisions” that were outside of her area of expertise. Ms. Oleksyk further testified that she reviewed prior to the meeting the receptive language evaluation conducted by Ms. Urquhart in January 2006; and that at the meeting she reported to the Team regarding this evaluation, comparing the results to her own speech-language evaluation in 2002-2003. BSEA # 05-3840 transcript, vol. 2, pp. 186-195; vol. 3, pp. 48-51, 61-77. Dr. Chaskelson also testified in the present dispute that at the Team meeting, Ms. Oleksyk reported to the Team regarding the speech evaluation and the receptive language evaluation.

Sutton’s occupational therapist (Ms. Beaudin) testified in the previous dispute in BSEA # 05-3840 that prior to the meeting she had the opportunity to review the eye care examination conducted by Dr. Thamel in June 2005; that she was familiar with recommendations made in the evaluation report, a number of which were included in her own recommendations to the IEP Team. Ms. Beaudin further testified that prior to the meeting she had the opportunity to review the occupational therapy and the dynamic listening systems evaluations conducted by Ms. Carley of Project CHILLD in February 2006; and that at the meeting she reported to the Team regarding these evaluations’ findings and recommendations relative to Student’s needs for occupational therapy. BSEA # 05-3840 transcript, vol. 3, pp. 119-128. Dr. Chaskelson also testified in the present dispute that at the Team meeting, Ms. Beaudin reported to the Team regarding the CHILLD evaluations.

Sutton’s special education teacher (Ms. DeCaro) testified in the previous dispute in BSEA # 05-3840 that she attended the IEP Team meeting of May 25, 2006. She explained that prior to the meeting, she had the opportunity to review all five of the evaluations considered by the IEP Team on May 25 th . BSEA # 05-3840 transcript, vol. 3, pp. 204-206.

At the IEP Team meeting, Parents’ neuropsychologist, Dr. Chaskelson, presented her report to the Team for approximately 30 minutes for the purpose of clarifying what she provided in her written report. Dr. Chaskelson explained that following her presentation, there were no questions or further discussion of her evaluation and recommendations. Testimony of Chaskelson.

Mother testified that she attended the May 25, 2006 IEP Team meeting. She explained that Sutton’s attorney seemed to be leading the meeting. She testified that the eye care evaluation was discussed but not in sufficient depth. Mother further stated that the occupational therapy dynamic listening systems report was discussed by the Sutton occupational therapist (Ms. Beaudin), but Ms. Beaudin stated at the Team meeting that she could not review the dynamic listening component of the report because it was an area of auditory processing with which she was not familiar and for which she had no training. Mother further testified that Dr. Chaskelson’s report was not given the “full credit” that it should have been given, which would have taken two hours. Mother emphasized that the report was “not given a full shake at all.” In sum, she testified that in her opinion, there was not a “meaningful” discussion of the evaluations considered at the Team meeting. Testimony of Mother.

In sum, the uncontroverted testimony is that through the IEP Team meeting, Sutton gave substantive consideration to Parents’ five evaluations. Parents do not deny this; rather, their concerns are with the quality and length of the Team’s consideration.

Both federal and Massachusetts regulatory standards implementing the IDEA require only that the IEP Team “consider” Parents’ evaluation in the decision made by IEP Team.42 The term “consider” is undefined by the federal and state regulations.

Parents’ position is that a commonsense understanding of the term “consider” requires that the IEP Team not only listen to the presentation of its neuropsychologist (Dr. Chaskelson) who presented her report at the Team meeting, but also that the Team itself follow up this presentation with a substantive discussion of Dr. Chaskelson’s findings and recommendations. Although it seems clear that a perfunctory or meaningless review would be insufficient, the First Circuit has interpreted the “consider” standard applicable to IEP Team review as not requiring the Team to have a “substantive discussion” of the evaluation.43

I find that substantive consideration was given to each of the five evaluations by the IEP Team at its May 25, 2006 meeting and that this review satisfied Sutton’s legal responsibilities under the IDEA.

Parents also take the position that the IEP Team meeting was impermissibly orchestrated by Sutton’s attorney who appeared to be advising the Team members during the meeting regarding what could be discussed. Testimony of Mother, Chaskelson.

Notwithstanding the role of Sutton’s attorney, Parents were not denied the opportunity to be equal collaborators at the meeting and to participate in the deliberations of the Team in a meaningful way.44 In short, I find that Parents were not significantly impeded from having an opportunity to participate in the decision-making process regarding the provision of FAPE.

Parents also argue that the decision of the Team was predetermined. Although Sutton’s attorney expressed certain views at the Team meeting, this appeared to be for the purpose of maintaining the proper focus of the meeting, which was to consider Parents’ evaluations and decide whether anything within these evaluations indicated that Student’s educational needs had changed or that Student’s educational needs should be addressed through services different than what Sutton had already proposed for Student. There is no evidence to indicate that these deliberations of the IEP Team members were predetermined.

Also at issue in this dispute is whether the May 25, 2006 IEP Team was properly constituted for the purpose of considering Parents’ private evaluations. It is not disputed that at the IEP Team meeting, Sutton did not have in attendance a school psychologist and that none of the persons in attendance had the qualifications of a neuropsychologist or behavioral ophthalmologist. Testimony of Balboni. In their closing argument (page 17), Parents concede that it was not necessary to have a neuropsychologist or behavior ophthalmologist present at the Team meeting, but Parents raise an objection to the inability of the IEP Team, as constituted for purposes of the May 25, 2006 meeting, to review the dynamic listening component (which is an area of auditory processing) of the occupational therapy evaluation that was considered by the Team. The unrebutted evidence was that the IEP Team did not include an individual who could interpret this part of the Parents’ occupational therapy evaluation.

For these reasons, I find that with respect to the dynamic listening component of the occupational therapy evaluation, Sutton did not comply with the IDEA procedural requirement that “an individual who can interpret the instructional implications of evaluation results” be part of the IEP Team.45 In all other respects, I find that Sutton complied with IDEA procedural requirements relative to consideration of Parents’ evaluations.

With respect to Sutton’s failure to have someone in attendance who could interpret the instructional implications of the dynamic listening component of the occupational therapy evaluation, I find that the evidence presented by the parties is not sufficient to allow me to draw any conclusion regarding the educational implications of this omission. Although I assume that there were negative implications, it is not possible on the basis of the record in the instant dispute to understand how this may have impacted the IEP Team’s understanding of Student’s educational needs or how it may have affected the educational services proposed for Student.

As discussed above in part A of this section of the Decision, it is not sufficient that Parents demonstrate a procedural error. In order to obtain relief, Parents have the burden of persuasion to demonstrate that some harm – that is, that the violation impeded Student’s right to FAPE, significantly impeded Parents’ opportunity to participate in the decision-making process regarding FAPE or caused a deprivation of educational benefits.46

For the above-stated reasons, I conclude that with respect to Suttons’ one procedural error, Parents have not met their burden of persuasion that Student was harmed. I further find that Sutton otherwise complied with the procedural requirements relative to the IEP Team meeting on May 25, 2006.

E. Appropriateness of Services Obtained by Parents

Parents’ only requested relief is that Sutton should reimburse Parents for services that they have privately retained for their son.47 If the parents of a disabled student enroll their son or daughter in private educational services without the consent of or referral by the school district, as is the case in the instant dispute, a BSEA Hearing Officer may require the school district to reimburse the parents for the cost of that enrollment but only if the Hearing Officer finds both that (1) the school district had not made a free appropriate public education available to the student in a timely manner prior to that enrollment and that (2) the private educational services were appropriate. Therefore, in order for Parents to obtain reimbursement of privately-obtained educational services, they have the burden to establish that their son was denied FAPE and that their private educational services were appropriate. Both prongs of this standard must be met in order for Parents to be entitled to reimbursement.48

For the reasons explained above in parts B, C, and D of this section of the Decision, I have concluded that Sutton did not violate Parents’ procedural rights, with the exception of the IEP Team’s consideration of the dynamic listening component of the occupational therapy evaluation; and with respect to this one exception, Parents have not established that there has been a denial of FAPE. As a result, Parents have not satisfied the first prong of the above-referenced reimbursement standard and are not entitled to reimbursement of the costs of any of their privately-obtained educational services.

I now consider whether Parents have satisfied the second prong of the reimbursement standard – that is, whether they have met their burden of persuasion regarding the appropriateness of the educational services for which they seek reimbursement.

In the instant dispute, Parents did not present evidence, either through documents or witnesses, supporting the appropriateness of their private educational services. Rather, Parents relied upon the findings of the Hearing Officer in the previous BSEA dispute.

In the previous dispute in BSEA # 05-3840, Hearing Officer Berman considered the appropriateness of Parents’ services that were provided from June 2005 until the time of the hearing, which occurred over the course of eight hearing days from June 28, 2006 until October 12, 2006. The private services considered by the Hearing Officer were as follows:

· From June 2005 to the time of the hearing, Parents provided their son with 20 hours of Lindamood Bell services per week, three hours of occupational therapy per week, two hours of speech-language therapy per week.

· From September 2005 to February 2006, approximately 4.5 hours of tutoring and one hour of recreation at Beverly School for the Deaf were added to that schedule.

· In February 2006, an hour per week of sign language instruction at BSD was added.49

In the previous decision, the Hearing Officer reviewed these services and also considered evidence of what progress Student had made as a result of Parents’ services. She then made the following finding: “while Student’s progress is uneven and difficult to measure accurately regardless of the settings he is in, there is evidence on the record that Student in fact derived educational benefit from his Lindamood-Bell instruction, with his speech therapist, tutor, and occupational therapist.” The Hearing Officer then concluded: “Sutton need not pay for Parents’ placement, but it has not proved that Parents’ placement denies Student FAPE.” Previously in the decision, the Hearing Officer had concluded that Sutton (not Parents) had the burden of persuasion regarding the question of whether the Parents were denying their son FAPE by placing him in their privately-obtained services.50

At the hearing in the instant dispute, Mother testified that during the time period for which Parents now seek reimbursement (the 2006-2007 school year), Parents changed (or maintained) the services from what was considered by the previous Hearing Officer as follows:

· The Lindamood Bell services were reduced to 15 hours per week, as compared to 20 hours per week during the 2005-2006 school year.

· The level of occupational therapy remained the same.

· The speech-language therapy was increased by one hour per week starting in June 2007.

· The tutoring level remained the same.

· The one hour per week of sign language instruction was discontinued in December 2006.

· The one hour of recreation at Beverly School for the Deaf was discontinued in January 2007 although Parents then added informal opportunities for recreation for their son.

· The neuro-feedback services remained the same.

Testimony of Mother.

Mother also testified that the Lindamood Bell services for her son were different than (and worked on different skills than) the speech-language services. During the 2006-2007 school year, Student also received three months of cognitive development services to address his vision issues. Testimony of Mother.

In the instant dispute, neither party submitted evidence regarding what progress Student has made as a result of Parents’ private educational services.51

For two reasons, Parents cannot meet their burden of persuasion by relying exclusively on the decision in the previous dispute for purposes of determining that the 2006-2007 school year services were appropriate.

First, as discussed above, the previous BSEA Hearing Officer considered different services than the services provided during the 2006-2007 school year. There was no testimony or other evidence regarding the educational implications of these differences, other than Mother’s testimony that the Lindamood Bell services and the speech-language services worked on different skills and therefore, presumably, a decrease in Lindamood Bell services would not necessarily be offset by an increase in speech-language services. I am left to speculate whether the services privately provided during 2006-2007 were substantively the equivalent of those services considered by the Hearing Officer in the previous dispute.

Second, the previous Hearing Officer placed the burden of persuasion on Sutton, as compared to the present dispute where the burden is on Parents. The previous Hearing Officer did not actually conclude that Parents’ private services were appropriate. Instead, she found only that “[Sutton] has not proved that Parents’ placement denies Student FAPE.”52 Therefore, even were I to conclude that the services privately provided during 2006-2007 were substantively the equivalent of those services considered by the Hearing Officer in the previous dispute, the previous decision does not establish the appropriateness of those services and therefore does not satisfy Parents’ burden of persuasion.

For these reasons, I find that Parents have not met their burden of showing that the private services that they have provided their son during the 2006-2007 school year are appropriate.53

ORDER

Sutton did not violate Parents’ rights by not conducting required evaluations of Student.

Parents did not met their burden of persuasion that Student was harmed by Sutton’s one failure to consider relevant Student information presented by Parents for review at a May 25, 2006 IEP Team meeting.

Sutton did not violate Parents’ rights by not issuing an IEP for the 2006-2007 school year.

Parents did not meet their burden of persuasion to show that the alternate educational program (which they provided to Student throughout the 2006-2007 school year) was appropriate.

Parents are not entitled to reimbursement of expensed they incurred in providing an alternate educational program to Student throughout the 2006-2007 school year.

By the Hearing Officer,

William Crane

Dated: July 1, 2008

COMMONWEALTH OF MASSACHUSETTS

BUREAU OF SPECIAL EDUCATION APPEALS

THE BUREAU’S DECISION, INCLUDING RIGHTS OF APPEAL

Effect of the Decision

20 U.S.C. s. 1415(i)(1)(B) requires that a decision of the Bureau of Special Education Appeals be final and subject to no further agency review. Accordingly, the Bureau cannot permit motions to reconsider or to re-open a Bureau decision once it is issued. Bureau decisions are final decisions subject only to judicial review.

Except as set forth below, the final decision of the Bureau must be implemented immediately. Pursuant to M.G.L. c. 30A, s. 14(3), appeal of the decision does not operate as a stay. Rather, a party seeking to stay the decision of the Bureau must obtain such stay from the court having jurisdiction over the party’s appeal.

Under the provisions of 20 U.S.C. s. 1415(j), “unless the State or local education agency and the parents otherwise agree, the child shall remain in the then-current educational placement,” during the pendency of any judicial appeal of the Bureau decision, unless the child is seeking initial admission to a public school, in which case “with the consent of the parents, the child shall be placed in the public school program”. Therefore, where the Bureau has ordered the public school to place the child in a new placement, and the parents or guardian agree with that order, the public school shall immediately implement the placement ordered by the Bureau. School Committee of Burlington, v. Massachusetts Department of Education , 471 U.S. 359 (1985). Otherwise, a party seeking to change the child’s placement during the pendency of judicial proceedings must seek a preliminary injunction ordering such a change in placement from the court having jurisdiction over the appeal. Honig v. Doe , 484 U.S. 305 (1988); Doe v. Brookline , 722 F.2d 910 (1st Cir. 1983).

Compliance

A party contending that a Bureau of Special Education Appeals decision is not being implemented may file a motion with the Bureau contending that the decision is not being implemented and setting out the areas of non-compliance. The Hearing Officer may convene a hearing at which the scope of the inquiry shall be limited to the facts on the issue of compliance, facts of such a nature as to excuse performance, and facts bearing on a remedy. Upon a finding of non-compliance, the Hearing Officer may fashion appropriate relief, including referral of the matter to the Legal Office of the Department of Education or other office for appropriate enforcement action. 603 CMR 28.08(6)(b).

Rights of Appeal

Any party aggrieved by a decision of the Bureau of Special Education Appeals may file a complaint in the state court of competent jurisdiction or in the District Court of the United States for Massachusetts, for review of the Bureau decision. 20 U.S.C. s. 1415(i)(2).

An appeal of a Bureau decision to state superior court or to federal district court must be filed within ninety (90) days from the date of the decision. 20 U.S.C. s. 1415(i)(2)(B).

Confidentiality

In order to preserve the confidentiality of the student involved in these proceedings, when an appeal is taken to superior court or to federal district court, the parties are strongly urged to file the complaint without identifying the true name of the parents or the child, and to move that all exhibits, including the transcript of the hearing before the Bureau of Special Education Appeals, be impounded by the court. See Webster Grove School District v. Pulitzer Publishing Company , 898 F.2d 1371 (8th Cir. 1990). If the appealing party does not seek to impound the documents, the Bureau of Special Education Appeals, through the Attorney General’s Office, may move to impound the documents.

Record of the Hearing

The Bureau of Special Education Appeals will provide an electronic verbatim record of the hearing to any party, free of charge, upon receipt of a written request. Pursuant to federal law, upon receipt of a written request from any party, the Bureau of Special Education Appeals will arrange for and provide a certified written transcription of the entire proceedings by a certified court reporter, free of charge.


1

“Neville” is a pseudonym chosen by Hearing Officer Lindsay Byrne (the previous BSEA Hearing Officer in the instant dispute) for confidentiality and classification purposes. Ms. Byrne was the Hearing Officer for this dispute until April 23, 2008 when the matter was re-assigned to the present Hearing Officer for administrative reasons.


2

Dr. Balboni testified with respect to events that occurred when she held her former position as Director of Special Education at Sutton Public Schools and when her name was Dr. Esposito. Hereinafter, she will be referred to as Dr. Balboni in this Decision.


3

Exhibits P-1A, P-1B, P-1C, P-4, P-5A, and P-5C were determined by the Hearing Officer not to be relevant and were excluded for this reason.


4

These issues were set forth in a Pre-Hearing Order, dated April 16, 2008, which the previous BSEA Hearing Officer (Lindsay Byrne) issued after considering each party’s understanding of the issues in dispute. These issues, as reflected in the April 16, 2008 Order, were further discussed with the parties during a conference call with the present Hearing Officer on April 25, 2008, during which the parties agreed that these are the issues that would be addressed at Hearing. See Order dated April 25, 2008.


5

In Re: Sutton Public Schools , BSEA # 05-3840, 13 MSER 95, 96-97 (SEA MA 2007). This decision has been appealed by Parents.


6

Id . at 110.


7

Id . at 109.


8

Id . at 97-98 (providing a more complete description of Student’s educational profile). During the evidentiary hearing in the instant dispute, Parents took the position that their son’s disabilities had not changed significantly since the earlier dispute before Hearing Officer Berman.


9

Id . at 104-105 (providing a more complete description of the proposed services).


10

Parents were represented by counsel from March 2005 (when Parents removed their son from Sutton Public Schools) until March 28, 2007 (when the decision was issued in the previous BSEA dispute). Father is also an attorney. Testimony of Mother.


11

20 USC 1400 et seq .


12

MGL c. 71B.


13

20 USC 1400(d)(1)(A). See also 20 USC 1412(a)(1)(A); MGL c. 71B, ss. 2, 3.


14

20 USCS § 1415(f)(3)(E)(2)(i).


15

20 USCS § 1415(f)(3)(E)(2)(ii).


16

Schaffer v. Weast , 546 U.S. 49, 62 (2005) (burden of persuasion in an administrative hearing is placed upon the party seeking relief; a party who has the burden of persuasion “ loses if the evidence is closely balanced” ).


17

Honig v. Doe, 484 U.S. 305, 311 (1988). See also 20 USC 1414(d)(1)(A)(i)(I)-(III).


18

20 USC 1414(d)(1)(A)(i)(I)-(III); Honig v. Doe, 484 U.S. 305, 311-12 (1988) ; Bd. of Educ. of the Hendrick Hudson Central Sch. Dist. v. Rowley , 458 U.S. 176, 182 (1982).


19

603 CMR 28.04(3).


20

Burlington v. DOE , 736 F2d 773, 794-795 (1 st Cir. 1984). See also Letter to Watson , 48 IDELR 284 (OSEP 2007) (school district cannot refuse to conduct an annual review of a student’s IEP even if parent is pursuing a due process claim against the district).


21

See, e.g., Garcia v. Board of Educ. of Albuquerque Public Schools , 520 F.3d 1116 (10 th Cir. 2008); Knable v. Bexley City Sch. Dist., 238 F.3d 755, 766 (6th Cir. 2001); Alfonso v. District of Columbia , 2006 U.S. Dist. LEXIS 11550 ( D.D.C. February 16, 2006) (“ plaintiffs are entitled to reimbursement for the 2004-2005 school year if DCPS failed to produce a valid, written IEP prior to the start of that year”) ; Dep’t of Educ. v. Cari Rae S., 158 F.Supp.2d 1190, 1196-97 (D.Haw.2001) .


22

Sutton has been represented by counsel at all relevant times. Testimony of Mother. It is not disputed that Parents’ attorney was authorized to enter into agreements on behalf of Parents relative to all aspects of their special education dispute with Sutton. Parents are not represented in the instant dispute.


23

In Re: Sutton Public Schools , BSEA # 05-3840, 13 MSER 95, 110 (SEA MA 2007).


24

The decision by BSEA Hearing Officer Berman, dated March 27, 2007, specifically addressed the appropriateness of Sutton’s IEPs issued in March and June 2005 for purposes of reimbursement. In addition, the Hearing Officer’s Order stated that Parents were not entitled either to reimbursement or to have Sutton place Student prospectively into the Parents’ proposed programs. In so doing, the Hearing Officer addressed Parents’ proposed relief for the 2006-2007 school year. In Re: Sutton Public Schools , BSEA # 05-3840, 13 MSER 95, 110 (SEA MA 2007).


25

Parents argue that Father’s letter of June 13, 2006 to the Sutton Director of Special Education (Dr. Balboni) put Sutton on notice that Parents wanted Sutton to write an IEP for the 2006-2007 school year. Exhibit P-9A. I do not agree. The letter requests that Sutton make changes to its proposed educational program for Student. No doubt Parents sought these changes as part of their on-going negotiations with Sutton to resolve this dispute short of a BSEA evidentiary hearing. However, discussions for purpose of obtaining different or improved services are substantively different than a request that Sutton write an IEP for the 2006-2007 school year, which is a request that Father’s letter does not make.


26

20 USC 1414(d)(1)(A)(i)(I)-(III); Honig v. Doe, 484 U.S. 305, 311-12 (1988) ; Bd. of Educ. of the Hendrick Hudson Central Sch. Dist. v. Rowley , 458 U.S. 176, 182 (1982).


27

20 USC 1415(b)(6)(A) (IDEA language defining a hearing officer’s jurisdiction). The First Circuit has broadly construed this jurisdictional language. Rose et al. v. Yeaw , 214 F.3d 206 (1 st Cir. 2000) (“scope of the due process hearing is broad, encompassing ‘complaints with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to such child.’ Id. § 1415(b)(6)”).


28

BSEA Hearing Officers are split on the question of whether they may consider the legal implications of an agreement. Compare, e.g., In Re: Agawam Public Schools , BSEA # 02-2374, 8 MSER 103 (2002) (“Private parties may agree on terms that are mutually beneficial logistically or financially but which should not be endorsed by a government agent [e.g., the BSEA] charged with upholding a civil rights statute”) with In Re: Boston Public Schools , BSEA # 06-3836, 12 MSER 161 (2006) (“Hearing Officer’s jurisdiction may include consideration of the legal implications of an agreement with respect to parents’ special education rights”). Nevertheless, to my knowledge all of the federal courts that have considered the question have concluded that a hearing officer either may or must consider the terms of the agreement, as those terms relate to the parties’ rights and responsibilities under the IDEA. See J.P. v. Cherokee County Bd. of Educ. , 218 Fed.Appx. 911 (11 th Cir. February 27, 2007 ) (claims regarding alleged breach of contract involving special education issues must be addressed through administrative due process remedies prior to consideration by the court); R.K., ex rel. T.K. v. Hayward Unified School Dist. , 2007 WL 2778702 ( N.D.Cal.,2007) ( exhaustion is required for claims concerning breaches of agreements settling due process complaints, especially where the alleged breach relates to the student’s receipt of a FAPE); S.G. v. District of Columbia , 2007 WL 2257585 ( D.D.C., 2007) (prior to consideration by the court, the hearing officer must first consider settlement agreement that is relevant to student’s special education rights); Traverse Bay Area Intermediate School Dist. v. Michigan Dept. of Educ. , 2007 WL 2219352 ( W.D.Mich). July 27, 2007) (“Court concludes that the reasoning of the above cases requiring exhaustion of claims alleging breach of a settlement agreement, especially where such claims relate to the provision of a FAPE, is sound. Because the District’s breach of contract claims concern educational and medical evaluations of the minor as well as her educational placement, these are issues that may be addressed through the administrative process.” ); Sarah Z. v. Menlo Park City Sch. Dist., 2007 WL 1574569 (N.D.Cal. 2007) (court lacked jurisdiction to hear breach of contract claim relating to plaintiff’s special education services because claim was not exhausted before administrative law judge); Pedraza v. Alameda Unif. Sch. Dist., 2007 WL 949603, *6 (N.D.Cal. 2007) (alleged violation of settlement agreement was, in effect, an allegation of denial of FAPE; court indicated that the California Office for Administrative Hearings could have taken jurisdiction over the dispute); Chardon Local School District Board of Education v. A.D. , 45 IDELR 182 (N.D.Ohio 2006) (“this Court agrees with the IHO [impartial hearing officer] that it is wholly appropriate to treat alleged violations of the terms of the instant Mediation Agreement [which was attached to the IEP and therefore part of the educational record] within the scope of [the hearing officer’s] due process review”); Linda P. v. State of Hawaii, Dep’t of Education, 106 LRP 45612 (D. Hawaii 2006) (“hearing officer correctly found and concluded that the claims were covered by a binding and enforceable settlement agreement”); Board of Education of Township High School District No. 211 v. Michael R. and Diane R., 2005 U.S. Dist. LEXIS 17450, 105 LRP 40802 (N.D. Ill. 2005) (issue of whether the settlement agreement was breached was an issue to be decided by the Hearing Officer); Banks ex rel. Banks v. Modesto City Schs. Dist., 2005 WL 2233213 (E.D.Cal. 2005) (settlement agreement, entered into before a due process hearing had begun and not approved by an administrative law judge, did not constitute exhaustion); S.A.S. ex rel. W.S. v. Hibbing Pub. Schs., 2005 WL 1593011 (D.Minn. 2005) (plain language of settlement agreement prevents plaintiffs from raising any waived claims in an administrative or judicial forum); Joan R. v. Barrington Public Schools, 2004 U.S. Dist. LEXIS 22589, CA 02-282ML (D.R.I. 2004) (federal court affirmed Hearing Officer’s decision that school district must pay for part of student’s placement pursuant to an implied contract between the parties); Steward v. Hillsboro School District No. 1J , CV 00-835-AS, 2001 WL 34047100 (D.Oregon 2001) (“ settlement agreement that has been breached by the school district is a ‘complaint’ which, under the IDEA and its regulations, must first be presented to the appropriate administrative body”) ; (D.Oregon 2001); Kegel v. The Santa Fe Public Schools , CA 00-1806 JP/RLP (ACE), LoisLaw Federal District Court Opinions (D.N.M. 2001) (collecting cases) (“prevailing, and most sensible, view is that post-resolution enforcement claims must comply with IDEA’s administrative process”); Mr. J. v. Board of Education, 98 F. Supp.2d 226 (D.Conn. 2000) (“[p]ublic policy dictates that settlement agreements should be enforced” by hearing officer) ; Tyson v. Kanawha County Bd. of Ed ., 22 F.Supp.2d 535, 537 (S.D. W. V. 1997) (court dismissed claims for failure to exhaust administrative due process since “issue of whether a breach existed of any settlement between the parties is itself an entire new issue to be complained of and put through the proper administrative process”) ; W.L.G. v. Houston County Board of Education , 975 F.Supp. 1317, 1328-1329 (M.D. Ala. 1997) (“ claim that the school board has failed to comply with the settlement agreement is essentially a ‘complaint,’ which, under the IDEA, first should be presented in a due-process hearing ”).


29

With respect to agreements as well as other matters that may come before the Hearing Officer (for example, IEPs), the IDEA does not provide the Hearing Officer with enforcement authority. See, e.g., A.R. v. New York City Department of Education , 407 F.3d 65, n.13 (2 nd Cir. 2005) (although the terms of a special education Hearing Officer’s decision are enforceable by a court, “[Hearing Officers], as is common in administrative procedures, have no enforcement mechanism of their own”).


30

Alison H. v. Byard , 163 F.3d 2 (1 st Cir. 1998) (court determined that an agreement extinguished parent’s otherwise viable claim for attorney fees under the IDEA). Also, the First Circuit has interpreted the IDEA as providing a broad scope to the BSEA’s due process hearing. Rose v. Yeaw, 214 F.3d 206, 210 (1 st Cir.2000) (noting the “broad, encompassing” scope of the IDEA due process hearing).


31

E.g., Florence County School District Four v. Carter , 510 U.S. 7, 16 (1993); School Committee of Burlington v. Department of Education of Mass., 471 U.S. 359, 374 (1985); School Union No. 37 v. Ms. C. , 518 F.3d 31, 34 (1 st Cir. 2008); Diaz-Fonseca v. Commonwealth of Puerto Rico , 451 F.3d 13 (1 st Cir. 2006); Rafferty v. Cranston Pub. Sch. Committee , 315 F.3d 21 (1st Cir. 2002).


32

See C.G. ex rel. A.S. v. Five Town Community School Dist. , 513 F.3d 279, 288 (1 st Cir. 2008) ( parent’s unreasonable actions, which caused the IEP process not to be completed, may justify a denial of reimbursement under the IDEA).


33

20 USC §1414(a)(2); 34 CFR 300.303; 603 CMR 28.04(3).


34

Hearing Officer Byrne was the BSEA Hearing Officer in the instant dispute until this case was re-assigned to the present Hearing Officer on April 23, 2008. The November 20, 2007 letter was not put into evidence but is part of the administrative record. In its closing argument (page 20), Sutton takes the position that Parents’ claim regarding failure to conduct a three-year re-evaluation was not evident to Sutton until a conference call on April 15, 2008 with Hearing Officer Byrne.


35

See 603 CMR 28.07(2)(a) (“All efforts shall be made to avoid duplicative or unnecessary testing.”).


36

Federal regulations under the IDEA requiring that a school district give prior written notice that meets certain content standards is not relevant to this analysis. 34 CFR 300.503(b). These regulations would apply, for example, if the school district were refusing to comply with Parents’ request that evaluations occur or be changed. Nothing within these federal regulations precludes the parties from simply agreeing between themselves to delay evaluations that the school district would otherwise be required to provide. Rather, the IDEA explicitly allows the parties to agree to delay an otherwise required three-year re-evaluation. See 20 USC §1414(a)(2)(B)(ii); 34 CFR 300.303(b)(2).


37

See C.G. ex rel. A.S. v. Five Town Community School Dist. , 513 F.3d 279, 288 (1 st Cir. 2008) ( parent’s unreasonable actions, which caused the IEP process not to be completed, may justify a denial of reimbursement under the IDEA).


38

603 CMR 28.04(5)(f) (“Within ten school days from the time the school district receives the report of the independent education evaluation, the Team shall reconvene and consider the independent education evaluation and whether a new or amended IEP is appropriate.”)


39

603 CMR 28.04(3) ( “ school district shall review the IEPs and the progress of each eligible student at least annually”).


40

603 CMR 28.04(5)(f) (“Within ten school days from the time the school district receives the report of the independent education evaluation, the Team shall reconvene and consider the independent education evaluation and whether a new or amended IEP is appropriate.”)


41

Parents take the position in their closing argument that even if Sutton was not required to review the EEG evaluation at the May 25, 2007 Team meeting, Sutton should have reviewed this evaluation at a subsequent time. I do not address this issue because it pertains to a question beyond the scope of this Hearing. See part II of this Decision, defining the issues in dispute.


42

34 CFR §300.502(c) (“If the parent obtains an independent educational evaluation at public expense or shares with the public agency an evaluation obtained at private expense, the results of the evaluation — (1) Must be considered by the public agency, if it meets agency criteria, in any decision made with respect to the provision of FAPE to the child”); 603 CMR 28.04(5)(f) (“Within ten school days from the time the school district receives the report of the independent education evaluation, the Team shall reconvene and consider the independent education evaluation and whether a new or amended IEP is appropriate.”) Similarly, the IDEA requires that the IEP Team “consider” the results of the most recent evaluation of the child . 20 U.S.C. § 1414(d)(3)(A)(iii).


43

G.D. v. Westmoreland School Dist . , 930 F.2d 942, 947 (1 st Cir. 1991) . See also T.S. v. Board of Education of the Town of Ridgefield, 10 F.3d 87, 90 (2 nd Cir. 1993) (sufficient that director of special education and a member of the IEP Team received and reviewed parents’ evaluation prior to the Team meeting, and that school psychologist read the social-emotional findings of the evaluation to the Team and summarized other portions of the report for the Team ).


44

See Sch. Comm. of Burlington v. Dep’t of Educ. of Mass., 471 U.S. 359, 368 (1985) (IDEA requires “full participation” of parents in the resolution of substantive disagreements relative to their son’s special education and related services); T.S. v. Board of Education of the Town of Ridgefield, 10 F.3d 87, 90 (2 nd Cir. 1993) (rejecting parent’s claim that the team meeting was “orchestrated” to reach a predetermined result and that school district employees on the team “censored” the discussion, the court concluded that parent was not denied the opportunity to be an “equal collaborator” during the team meeting).


45

20 USC § 1414(d)(1)(B)(v).


46

20 USCS § 1415(f)(3)(E)(2)(ii).


47

At the evidentiary Hearing in response to a question from the Hearing Officer, Father made clear that this is the only relief that Parents are requesting.


48

20 USC 1412 (a)(10)(C)(ii); Florence County Sch. Dist. Four v. Carter , 510 U.S. 7, 11-13 (1993); Sch. Comm. of Burlington v. Dep’t of Educ., 471 U.S. 359, 370, 373-74 (1985); Diaz-Fonseca v. Puerto Rico , 451 F.3d 13, 31 (1 st Cir. 2006).


49

In Re: Sutton Public Schools , BSEA # 05-3840, 13 MSER 95, 106, par. # 84 (SEA MA 2007).


50

Id . at 109.


51

Parents submitted progress reports from Student’s Lindamood Bell program, but these reports only reflect Student’s progress through May 10, 2006. Exhibit P-3.


52

In Re: Sutton Public Schools , BSEA # 05-3840, 13 MSER 95, 109 (SEA MA 2007).


53

In its closing argument, Sutton makes an additional argument as to why Parents are not entitled to any relief regarding the issues in dispute. Sutton correctly notes that Hearing Officer Berman’s Decision considered and made findings of fact relative to certain evaluations considered during the May 25, 2006 Team meeting, Sutton takes the position that the May 2006 Team meeting was an “integral part” of the previous hearing, Sutton notes that Parents could have raised in that litigation all of the issues now before me, and Sutton therefore argues that the doctrines of collateral estoppel and res judicata preclude my consideration of any of the issues before me in the instant dispute. Parents counter that the previous Hearing Officer (Lindsay Byrne) in the instant dispute has already considered and ruled on Sutton’s motion to dismiss, which was premised on a defense of collateral estoppel and res judicata, and Hearing Officer Byrne’s ruling left intact Parents’ current claims. In light of my findings and conclusions denying Parents any relief regarding their present claims, I find it unnecessary to address further Sutton’s collateral estoppel and res judicata defense.


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