Scituate Public Schools – BSEA # 09-5506



<br /> Scituate Public Schools – BSEA # 09-5506<br />

COMMONWEALTH OF MASSACHUSETTS

BUREAU OF SPECIAL EDUCATION APPEALS

In Re: Scituate Public Schools

BSEA # 09-5506

RULING ON MOTION FOR SUMMARY DECISION

A. INTRODUCTION

On March 16, 2009, Parents filed their Hearing Request with the Bureau of Special Education Appeals (BSEA). On April 3, 2009 and April 23, 2009, Parents withdrew several of their claims, leaving the following two claims: 1) Parents seek reimbursement of their expenses for providing tutoring for their son during the summer of 2008; and 2) Parents seek reimbursement for their privately-obtained neuropsychological assessment.

On April 3, 2009, Scituate filed a motion for summary decision regarding the two remaining claims. On April 17, 2009, Parents filed an opposition to Scituate’s motion. During a conference call on April 6, 2009, the parties agreed that the motion for summary decision should be resolved by the Hearing Officer on the basis of the documents alone and without a motion hearing. I agree that a hearing would not likely be useful or needed for purposes of my resolving this motion.

This ruling is issued pursuant to the 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.

B. STANDARDS REGARDING SCITUATE’S MOTION

The Executive Office of Administration and Finance Adjudicatory Rules of Practice and Procedure, which are applicable to BSEA hearings, allow for summary decision when there is no genuine issue of fact relating to all or part of a claim or defense, and the moving party is entitled to prevail as a matter of law.1

Further guidance is found by turning to judicial rules regarding a motion for summary judgment, which rules set forth a standard substantially similar to the above-referenced adjudicatory rules. Federal Rule of Civil Procedure 56(c) provides that summary judgment is appropriate when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to a material fact and that the moving party is entitled to a judgment as a matter of law.” A “genuine” issue is one that could be resolved in favor of either party, and a “material fact” is one that has the potential of affecting the outcome of the case.2

I consider Scituate’s motion for summary decision pursuant to these standards.

C. FACTS

The following facts are not in dispute.

Student is a nine-year-old boy who currently attends the 3 rd grade at Scituate’s Wampatuck Elementary School. Student has many wonderful qualities. He is kind-hearted, caring, and enthusiastic. He has many academic and cognitive strengths, including math reasoning skills, and verbal and non-verbal comprehension. Student has been diagnosed with attention deficit hyperactivity disorder and a seizure disorder. Student also has postural control difficulties, fine motor deficits, and written language deficits.

Near the end of his 1 st grade (2006-2007) school year, Student was referred for consideration of special education eligibility. Scituate completed initial evaluations in May 2007.

These evaluations included administration of the Wechsler Individual Achievement Test – Second Edition, which included several tests to measure Student’s reading skills and abilities. Student scored in the average range on each of the reading sub-tests, and his overall reading ability was determined to be in the average range.

Following the completion of these evaluations, Scituate convened an IEP Team meeting. The IEP Team determined that Student was eligible to receive special education services and proposed an IEP. The proposed IEP did not include reading services. Parents accepted the IEP.

From the beginning of the 2 nd grade (2007-2008) school year, Parents believed that their son struggled with reading. Early in the school year, a Scituate reading teacher administered to Student the Dynamic Indicators of Basic Early Literacy Skills (DIBELS) assessment, which yielded scores regarding Student’s oral reading fluency and nonsense word fluency. On the basis of these test scores, the DIBELS scoring guide recommended that Student be given additional instruction, and a Scituate reading teacher began providing general education remedial reading services to Student for 30 minutes, three times per week.

On October 27, 2008, the IEP Team met. On March 14, 2008, the IEP Team met again, this time in order to conduct its annual meeting to review Student’s progress and propose a new IEP for the next 12 months. The Team re-convened on May 27, 2008 and then again for a final meeting on June 9, 2008 in order to complete discussions of the IEP. As a result of these meetings, Scituate proposed an IEP for the period March 2008 to March 2009. During these Team meetings beginning with the Team meeting in October 2007, Parents expressed substantial concerns regarding their son’s reading. Parents had come to believe that their son was actually losing reading skills during 2 nd grade.

When Scituate proposed its March 2008 to March 2009 IEP for Student, Scituate believed that Student’s reading skills, as reported by his classroom teacher and his reading teacher, were “average” and that there was no evaluation that supported including reading services within the IEP. Scituate also took the position, based also upon reports from Student’s teachers, that his performance in school did not support a conclusion of regression in reading. For these reasons, the Scituate members of the Team proposed an IEP that did not identify reading as a deficit, did not include any special education remedial reading services during the school year, and did not propose summer reading services.

Parents partially accepted and partially rejected the proposed IEP. Parents believed that their son had substantial reading deficits particularly regarding fluency and that his reading deficits should be addressed through the IEP. Among other changes to the IEP proposed by Parents, they specifically sought direct special education services pertaining to reading during the school year, as well as reading services during the summer of 2008.

In light of this disagreement, Scituate proposed that it conduct an evaluation to assess Student’s reading skills in order to determine Student’s need for special education or related services in this area. In a notice dated June 13, 2008, Scituate sent Parents a consent form to allow Scituate to proceed with a reading assessment. In their response dated July 21, 2008, Parents refused consent for the reading assessment, explaining that Student’s “reading is being evaluated through a full neuropsychological assessment currently underway.”

In light of Scituate’s continued refusal to include summer reading services in Student’s IEP, Parents proceeded to unilaterally hire a reading teacher to tutor their son from June 20, 2008 to August 28, 2008.

Over five days during June and July 2008, Parents privately obtained a neuropsychological assessment of their son. The written report of the neuropsychological evaluation was dated August 29, 2008. On September 10, 2008, Scituate received a copy of the report from Parents.

On December 29, 2008, Parents submitted copies of the tutor’s bills to Scituate for purposes of requesting reimbursement for the tutoring during the summer of 2008. Scituate has refused to reimburse Parents for this expense.

Through Parents’ Hearing Request , which Scituate received on or about March 13, 2009, Parents notified Scituate, for the first time, that they were seeking reimbursement from Scituate for the cost of their neuropsychological evaluation that had been conducted the previous summer. Scituate has never conducted a neuropsychological evaluation of Student, nor have Parents requested that Scituate conduct such an evaluation. Scituate has refused to reimburse Parents for this expense.

D. REIMBURSEMENT FOR SUMMER TUTORING FOR READING

Parents seek reimbursement of their expenses for tutoring their son received from a reading teacher during the summer of 2008. Scituate seeks a summary decision regarding this issue.

The Massachusetts special education regulations utilize a regression standard to determine whether a summer program may be appropriate:

An extended year program may be identified if the student has demonstrated or is likely to demonstrate substantial regression in his or her learning skills and/or substantial difficulty in relearning such skills if an extended program is not provided.3

The federal special education regulations employ a free appropriate public education (FAPE) standard:
(a) General . (1) Each public agency shall ensure that extended school year services are available as necessary to provide FAPE, consistent with paragraph (a)(2) of this section. (2) Extended school year services must be provided only if a child’s IEP team determines, on an individual basis, in accordance with §§300.320 through 300.324, that the services are necessary for the provision of FAPE to the child.4

In order to obtain reimbursement for the summer tutoring provided by Parents, Parents must demonstrate both that Student was entitled to summer reading services under state or federal special education law, and that the summer reading services unilaterally provided by Parents were appropriate under the above-quoted regulatory standards.5

I first consider whether Scituate was under an obligation to propose summer reading services for Student for the summer of 2008.

When Parents sought summer reading services for their son in the spring of 2008, there was a disagreement between Parents and Scituate as to whether Student had a reading deficit, whether Student’s reading skills had been regressing during 2 nd grade, and whether Student was entitled to receive special education reading services during the summer of 2008 as well as during the school year. In order to help resolve this dispute, Scituate proposed that it conduct a reading assessment. Parents declined consent, taking the position that their son’s reading skills and needs would be addressed through their own neuropsychological assessment.

Courts have made clear that, as a general rule, a parent may not preclude a school district from evaluating their son or daughter, nor may a parent force a school district to rely upon a parent’s own evaluation. Rather, if a parent desires special education services, he or she may be required to allow the school district to conduct its own assessments for the purpose of the school district’s determining the extent of the student’s special education needs and how those needs should be addressed.6

By refusing to consent to a reading assessment, Parents precluded Scituate from evaluating Student to determine the extent of his reading needs and whether his reading needs warranted special education services. Once Parents precluded Scituate from determining whether Student was entitled to special education reading services, Parents could not then claim that Scituate should have offered special education reading services. By eliminating any responsibility of Scituate to offer reading services for the summer of 2008, Parents, at the same time, eliminated any responsibility of Scituate to reimburse Parents’ reading tutorial services privately provided during the summer of 2008.

Parents argue to the contrary, pointing out that prior to Scituate’s request for permission to conduct a reading assessment, Scituate was in possession of evaluation results indicating Student’s need for reading services—specifically, the DIBELS assessment, which was conducted at the beginning of the 2007-2008 school year. The DIBELS may be useful for determining whether a student needs regular education reading assistance, but there is no basis for concluding that Scituate may be required to utilize the DIBELS as its evaluation for purposes of determining whether Student has a reading deficit and whether Student requires special education or related services to address the deficit.

Parents further point out, correctly, that during the 2 nd grade year, they repeatedly expressed their concerns to Scituate regarding their son’s reading fluency. For example, Parents raised this issue at the October 2007 IEP Team meeting, and then at subsequent Team meetings. Parents also believe that the DIBELS scores should have put Scituate on notice regarding their son’s reading deficits. Possibly, Scituate waited too long before proposing a reading evaluation to assess whether Student had a reading disability that would warrant special education services, including summer reading services. (Scituate’s notice to Parents seeking consent for a reading evaluation is dated June 13, 2008.) However, there is no argument that any delay in seeking this evaluation precluded Scituate from determining, in a timely manner, whether Student had a reading deficit for purposes of summer services, assuming that Parents had consented to the evaluation in a timely manner. I therefore conclude that the possible lateness of Scituate’s request for consent for a reading evaluation is immaterial to the question of whether Scituate should reimburse Parents for their summer reading tutor.

Parents also point to their own neuropsychological evaluation that was conducted in the summer of 2008. Even if Scituate could be required to rely on Parents’ neuropsychological evaluation in lieu of Scituate’s own reading assessment, which it cannot, Parents’ neuropsychological assessment report arrived too late to be of assistance to Scituate for purposes of making decisions regarding summer services, since Scituate received this evaluation report from Parents on September 10, 2008.

Accordingly, Scituate’s motion for summary decision regarding this claim will be allowed.

E. REIMBURSEMENT FOR NEUROPSYCHOLOGICAL EVALUATION

Parents seek reimbursement for their privately-obtained neuropsychological assessment. Scituate seeks a summary decision regarding this issue.

Federal and state special education regulations address the question of when a school district may be required to fund an independent education evaluation. These regulations require that a parent’s request for a publicly-funded independent evaluation reflect a disagreement with the school district’s previous evaluation and that the school district’s evaluation, with which parent disagreed, occurred within the previous 16 months.7

More specifically, the relevant federal special education regulations read as follows:

Parent right to evaluation at public expense . (1) A parent has the right to an independent educational evaluation at public expense if the parent disagrees with an evaluation obtained by the public agency .8

Massachusetts regulatory language provides as follows:

Independent education evaluations . Upon receipt of evaluation results , if the parent disagrees with an initial evaluation or re-evaluation completed by the school district, then the parent may request an independent educational evaluation.9

These state regulations further explain:

The right to this publicly funded independent educational evaluation under 603 CMR 28.04(5)(c) continues for sixteen (16) months from the date of the evaluation with which the parent disagrees .10

It is not disputed that Scituate has never conducted a neuropsychological evaluation and Parents have never requested that Scituate do so. Therefore, there was no actual or proposed Scituate neuropsychological evaluation with which Parents disagreed. Parents simply sought to have their private independent neuropsychological evaluation funded by Scituate without agreeing or disagreeing with any actual or proposed neuropsychological evaluation conducted by Scituate within the previous 16 months.

The applicable federal and state special education regulations (quoted above) do not require Scituate to fund Parents’ neuropsychological evaluation under these circumstances. Accordingly, Scituate’s motion for summary decision regarding this claim will be allowed.

ORDER

Scituate’s motion for summary decision is ALLOWED .

Because all of Parents’ substantive claims (that have not been withdrawn) are resolved in favor of Scituate through the instant Ruling, Parents’ Hearing Request is dismissed and this case is closed. For this reason, I need not address the parties’ other outstanding motions.

By the Hearing Officer,

William Crane

Dated: April 28, 2009

IMPORTANT INFORMATION REGARDING DISMISSAL OF THIS CASE

Dismissal by the Bureau of Special Education Appeals (BSEA or Bureau) is a final action and is not subject to further review by the BSEA. Because 20 U.S.C. s.1415(i)(1)(A) requires the BSEA decision to be final and subject to no further agency review, the BSEA cannot permit motions to reconsider or to re-open a BSEA decision once it is issued. Any party aggrieved by a decision of the Bureau of Special Education Appeals may file a complaint in the state superior 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).


1

801 CMR 1.01(7)(h). These rules govern BSEA proceedings pursuant to 603 CMR 28.08(5)(b).


2

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-50 (1986) .


3

603 CMR 28.05(4)(d)1.


4

34 CFR 300.106.


5

20 USC 1412 (a)(10)(C)(ii); Sch. Comm. of Burlington v. Dep’t of Educ., 471 U.S. 359, 370 (1985).


6

E.g., M.T.V. v. Dekalb County School District , 446 F.3d 1153, 1160 (11 th Cir. 2006) (parents cannot force the school to rely solely on parents’ independent evaluation); Johnson by Johnson v. Duneland Sch. Corp . , 92 F.3d 554, 558 (7th Cir. 1996) (school district has the right to conduct its own evaluation); Andress v. Cleveland Indep. Sch. Dist ., 64 F.3d 176, 178-79 (5th Cir. 1995) (school district has the right to reevaluate a student using its own personnel); Dubois v. Connecticut State Board of Education , 727 F. 2d 44, 48 (2 nd Cir. 1984) (school system may insist on evaluation by qualified professionals who are satisfactory to the school officials); Vander Malle v. Ambach , 673 F.2d 49, 53 (2nd Cir. 1982) (school is entitled to have student examined by qualified psychiatrist of their choosing); M.L. ex rel. A.L. v. El Paso Independent School Dist . , 2009 WL 1019969 ( W.D.Tex. 2009 (parent “ may not … assert that A.L. is entitled to special education services while simultaneously refusing to allow [the school district] to evaluate A.L. to determine what those services may be”).


7

See, e.g., C.S. ex rel. Sundberg v. Governing Bd. of Riverside Unified School Dis. , 2009 WL 905455, *2 (9 th Cir. 2009) (Court upheld denial of reimbursement of parent’s independent evaluation because “[c]ontrary to the requirements of 34 C.F.R. § 300.502(b), [parents’] request for reimbursement for the IEE [independent educational evaluation] was made before receiving an assessment from [the school district] and after obtaining the IEE.”). See also In Re: Mansfield Public Schools , BSEA # 05-4247, 11 MSER 110 (2005); In re: Abington Public Schools , BSEA # 04-3493, 11 MSER 16 (2004).


8

34 CFR 300.502(b) (emphasis supplied).


9

603 CMR 28.04(5) (emphasis supplied).


10

603 CMR 28.04(5)(c)(vi) (emphasis supplied).


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