Student and Framingham Public Schools – BSEA # 11-1276



<br /> Student and Framingham Public Schools – BSEA # 11-1276<br />

COMMONWEALTH OF MASSACHUSETTS

BUREAU OF SPECIAL EDUCATION APPEALS

Student and Framingham Public Schools

BSEA No. 11-1276

CORRECTED RULING ON MOTION TO DISMISS and/or MOTION FOR SUMMARY JUDGMENT OF FRAMINGHAM PUBLIC SCHOOLS

This Corrected Ruling is identical to the Ruling on the School’s Motion to Dismiss and/or Motion for Summary Judgment that was issued on January 11, 2011, with the exception of correction of three typographical or scrivener’s errors noted by the Parent in her Motion for Clarification dated February 14, 2011 . This Corrected Ruling should be substituted for the original document.

On November 1, 2010, Student’s parent (Parent) filed a hearing request with the Bureau of Special Education Appeals (BSEA), in which she sought an order from the BSEA directing the Framingham Public Schools (Framingham or School) to reimburse Parent for the cost of a private occupational therapy (OT) evaluation conducted on or about June 29, 2010. Parent claimed that she had obtained the private evaluation in response to Framingham’s persistent failure or refusal to conduct its own OT evaluation within prescribed time lines, and failure to meet the Student’s OT needs.

The School filed its Response to the Hearing Request on November 10, 2010, in which it asserted that Mother was not entitled to a publicly-funded OT evaluation because more than 16 months had elapsed since the School’s most recent OT evaluation of Student. Further, the School stated that it agreed to conduct its own OT re-evaluation, after which Parent would be entitled to request an independent OT evaluation, but Parent unilaterally obtained the private evaluation without waiting for the School’s evaluation to be done.

On November 17, 2010,1 the District filed this Motion to Dismiss and/or Motion for Summary Judgment , stating that as a matter of law, Parent was not entitled to reimbursement. Parent filed an Opposition on December 8, 2010. An informal telephonic motion session was conducted on December 15, 2010, during which the parties discussed and clarified their respective positions. On December 16, 2010, the School filed additional correspondence explaining its position on a legal question posed by the Hearing Officer during the conference call.

SUMMARY OF UNDISPUTED FACTS

The following factual summary is based on the documents accompanying the Hearing Request, Response, Motion to Dismiss and/or for Summary Judgment, and Opposition.2 These facts are not in dispute.

Student is an eligible child with disabilities. The Framingham Public Schools is Student’s Local Educational Agency (LEA) responsible for ensuring that Student receives a free, appropriate public education (FAPE). Student currently is a nine-year-old fourth grader attending a public elementary school in Framingham.

There is no dispute that Student is a very bright, capable child who excels in the regular education classroom. Historically, the only service provided by Student’s IEPs has been pull-out speech/language therapy to address difficulties with articulation, together with some related accommodations. (SM-3) Student also has some weaknesses in his handwriting skills, which will be discussed more fully, below.

In June 2010, Framingham issued an IEP for the 2010-2011 school year (fourth grade), which addressed articulation issues. (SM-6) On July 22, 2010, Parent partially rejected this IEP on the grounds that it omitted services and/or strategies to address weak handwriting skills, as well as related MCAS accommodations. Parent also requested reimbursement for a private (OT) evaluation that she had obtained in June 2010. The following chronology summarizes the remaining pertinent facts.

1. According to Parent, Student struggled with fine motor skills since he was very young. He received Early Intervention services for fine motor issues from infancy until he “aged out.” Parent had told Framingham she was concerned about fine motor skills when she enrolled Student in Kindergarten, and has continued to express her concerns about this area from that time forward. (Hearing Request)

2. On or about February 26, 2008, at Parent’s request, Framingham conducted an OT “screening” of Student. Student was in first grade at the time. This “screening” consisted of Framingham’s occupational therapist, Ms. Debra Plugis, observing Student as he performed some paper-and-pencil and scissors tasks. Based on her observation, Ms. Plugis, recommended an OT evaluation as well as exercises and a pencil grip. (SM-1)

3. On June 3 and 5, 2008, Ms. Plugis conducted an OT evaluation consisting of informal assessments and formal testing. This evaluation revealed overall average hand development, fine-motor, and visual motor development. He had “adequate” application of visual and fine motor skills. Ms. Plugis found that Student “may need” extra practice with spacing and shape of letters. He needed to practice keeping his elbows and hands off the table when using scissors. (SM-2)

4. In an e-mail dated February 3, 2009 to the Evaluation Team Coordinator, Susan Wood, Parent requested an “updated OT screening” for Student, based on continued letter and number reversals, and a lower grade for handwriting than other subjects on his report card. The e-mail stated that Student “really struggles with handwriting.” (P-7)

5. In an e-mail dated March 23, 2010 to Student’s third grade classroom teacher, Lauren Sulcius, Parent stated that she was concerned about Student’s “handwriting and reversals,” and further stated that “I don’t know whether he should have an updated OT screening. I would appreciate your input on this….[A]t All Stars they told him he would have to redo homework if he didn’t write better…” (P-8)

6. In an e-mailed response to Parent’s email, the teacher commented “I understand your concern about reversals. Let’s chat [at a conference that she and Parent had just scheduled]. (P-8)

7. On March 29, 2010, Parent sent an e-mail to the special education liaison, Veralyn Werner, describing Student’s struggles with handwriting, and stating: “I would like to ask that you and the IEP TEAM order any OT testing—whether full or partial evaluation, that you think necessary to address this issue.” The email further requested that the testing be done in time for the upcoming annual review, scheduled for May 2010. (SM-4)

8. On May 18, 2010, Ms. Plugis conducted another OT screening. This screening consisted of an observation of various paper/pencil tasks as well as cutting with scissors. The screening revealed “overall adequate skills, with weaknesses noted.” These weaknesses were in “handwriting neatness,” which were attributed to rushing through work without monitoring, not following handwriting conventions such as spacing, and not investing time in visually editing for minor mistakes. (P-14)

9. The report further stated that an OT evaluation “is NOT recommended at this time,” and further recommended a behavioral approach to help Student slow down, monitor/edit his writing, and use conventions as well as extra practice with letter formation. (P-14)

10. The Team convened on May 20, 2010. The occupational therapist, Ms. Plugis, did not attend the TEAM meeting, despite Parent’s prior request. Parent and the classroom teacher received the OT screening report immediately before attending the meeting. At the meeting, the classroom teacher mentioned that Student did not fill in the bubbles on MCAS answer sheets in a way that could be machine scored..

11. Framingham issued an IEP on May 20, 2010 which did not contain any recommendations for an OT evaluation or services. (S-6)

12. In e-mails to Ms. Wood, (with copies to Ms. Sulcius, and Ms. Werner) dated May 26, and 28, 2010, Parent stated that she disagreed with the occupational therapist’s conclusion that Student’s handwriting was “adequate,” and requested an independent OT evaluation at School expense. (SM-8, P-17, 18)

13. In the e-mail of May 26, Parent provided a figure for her gross income and annual medical expenses. The documentary record does not reveal what action, if any, that the School took upon receipt of this financial information, or whether Mother pursued this issue further. (SM-8, P-17, 18)

14. In an e-mail dated May 29, 2010, Parent stated that she intended to pursue an outside evaluation with Children’s Therapy Associates, (CTA), that the cost of the evaluation was $900.00, and that Parent intended to seek reimbursement in that amount for a June 8 evaluation appointment. Parent further stated that if Framingham wished to review her request for funding, she would be willing to postpone the appointment. (P-19)

15. On June 1, 2010, the Evaluation Team Coordinator, Susan Wood, informed Parent that she had spoken to the occupational therapist, Ms. Plugis, who indicated that Student’s screening yielded scores in the average range, and that “he does not have a disability in this area.” Ms. Wood indicated that she would inform the Director of Special Education that Parent was rejecting the OT evaluation and requesting an outside evaluation. (P-21)

16. On June 3, 2010, Parent sent a letter to Pamela Kaufman, Director of Special Education for Framingham, requesting funding for an independent OT evaluation. (P-22)

17. Ms. Kaufman denied Parent’s request in a letter dated June 9, 2010. As reasons for denial, Ms. Kaufman stated that Framingham’s most recent OT evaluation had taken place in June 2008, beyond the 16 month interval for which Parent had the right to an independent evaluation. The letter further stated that “an occupational therapy screening is not an evaluation.” (S-14) Finally, the letter proposed conducting a school-based OT evaluation and enclosed a consent form. (SM-10)

18. By letter dated June 12, 2010, Parent notified Framingham that she would pursue the independent OT evaluation at Children’s Therapy Associates, which had been re-scheduled for June 29, and seek reimbursement from Framingham. (SM-11)

19. The letter further stated that Parent would consent to Framingham’s proposed OT evaluation, and cancel the June 29 appointment only if Framingham (1) provided a full OT evaluation, (2) convened the IEP Team, and (3) ordered OT services for the following school year, all in time for Parent to cancel the June 29 appointment. Parent enclosed a signed consent form with this letter. (SM-11)

20. On June 28, 2010, Special Education Director Kaufman sent a letter to Parent reaffirming Framingham’s denial of funds for an independent evaluation, and stating that Framingham would conduct the OT evaluation consented to by Parent after the start of the 2010-2011 school year. (SM-13)

21. Meanwhile, on June 26, 2010, Framingham issued an IEP for the 2010-2011 school year. On July 23, 2010, Mother rejected this IEP in part, based on the denial of reimbursement for the outside evaluation, as well as the absence of certain accommodations and services to address handwriting issues. (SM-14)

22. On August 17, 2010, Parent submitted the private OT report and invoice to Framingham, together with a letter requesting reimbursement and implementation of the recommendations in the report. (SM-15)

23. The report of the independent evaluator, who had formally assessed Student’s sensory processing, motor praxis, and motor performance (including fine motor/writing skills) found that Student did not need direct OT services, but had some mild fine motor difficulties that impacted his handwriting performance in school. The report suggested various classroom strategies, as well as an intensive 6-10 week small group or individual handwriting program. (SM-16)

ISSUE PRESENTED

At issue here is whether, as a matter of law, Parent was not entitled to an independent OT evaluation at public expense where (1) the last School evaluation had taken place more than sixteen months prior to the request; (2) the School had conducted an OT “screening” within the 16-month window, but did not consider that “screening” to be an evaluation; (3) the School did not request a BSEA hearing within five (5) school days of declining to fund an outside evaluation.

DISCUSSION

The School has moved for dismissal or summary judgment in this case. For reasons of efficiency, I will analyze this matter within the framework for summary judgment, which will effectively resolve the issues raised by both requests. In so doing, I examine all of the parties’ written submissions, including the Hearing Request , Response , Motion , Opposition , and documents attached to these submissions. For reasons discussed below, the School’s Motion is DENIED.

Summary judgment is available at the BSEA if “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…” 801 CMR 1.01(7)(h). As with motions to dismiss, in determining whether to grant summary judgment, BSEA hearing officers are guided by Rule 56 of the Federal and Massachusetts Rules of Civil Procedure, which provide that summary judgment may be granted only if the “pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there are no genuine issues as to any material fact and that the moving party is entitled to judgment as a matter of law.” Id.

A fact is “material” if it “might affect the outcome of the suit under governing law. Anderson v. Liberty Lobby, Inc ., 477 US 242, 248-252 (1986). The moving party has the initial burden of producing evidence that there is no dispute of material fact. Once the moving party has done so, the burden shifts to the opposing party to establish specific facts showing that there is a “genuine issue for trial.” Celotex Corp. v. Catrett , 477 US 317, 322 (1986). As with motions to dismiss, the parties’ case is viewed in the light most favorable to the non-moving party, in this case, the Parent. Anderson v. Liberty Lobby at 252. See also, Rulings on Motions for Summary Judgment in Zelda v. Bridgewater-Raynham Public Schools and Bristol County Agricultural Schools , BSEA No. 06-0256 (Byrne, 2006); In Re Westwood Public Schools , BSEA No. 10-1162 (Figueroa, 2010 ), In Re: Mike v. Boston Public Schools , BSEA No. 10-2417 (Oliver, 2010).

Here, I find that the material facts are not in dispute, and the sole issue is whether the School is entitled to summary judgment as a matter of law.

Both federal and state law provide that a parent who disagrees with an evaluation conducted by a school district may request an independent educational evaluation (IEE) at school expense.3 The pertinent federal regulations provide that upon receipt of that request, a school district must, “without unnecessary delay,” either request a due process hearing to “show that its evaluation is appropriate,” or pay for the evaluation.4

The Massachusetts special education statute, G.L. c. 71B, Sec. 3, explicitly defines the term “without unnecessary delay” for Massachusetts, stating “[u]pon completion of said [school-based] evaluation, the child’s parents may obtain an [IEE] at school committee expense…provided that the school committee may initiate within five school working days of the request, a hearing with the [BSEA] to show that its evaluation is appropriate…” (Emphasis supplied) Since the Massachusetts standard provides more protection to the Parent than the federal IDEA, that state standard must be applied. Town of Burlington v. Mass. Dept. o f Education , 736 F.2d 773, 792 (1 st Cir. 1984).

The corresponding state regulation provides that if a parent requests an IEE “in an area not assessed by the school district,” the district must either agree to pay for the IEE or “within five school days, proceed to the [BSEA] to show that its evaluation was comprehensive and appropriate.” 603 CMR 28.04(5)(d). Read in isolation, this state regulation appears to restrict the “five-day rule” to situations where a parent is requesting assessment in a new area, that the school has not evaluated. The state statutory language cited above makes clear, however, that this time limit applies to all cases where the school opposes funding an IEE, and the regulation should be applied accordingly.

The Massachusetts Department of Elementary and Secondary Education (DESE), (then, the Department of Education or DOE), put forward this interpretation in a 2008 legal opinion letter. This letter stated: “[i]f…the district determines that its evaluation was comprehensive and appropriate and intends to request a hearing, the plain language of G.L. c. 71B, Sec. 3 does not permit the district to wait more than five days before filing its request with the BSEA . “ Letter of Anne Berry Goodfellow, Legal Counsel to DOE, to Mary Ellen Sowyrda , April 22, 2008. (Emphasis supplied)

Finally, in Massachusetts, school districts must fully or partially fund IEEs for income-eligible families, according to the sliding scale established by state statute and regulations, upon receipt of pertinent financial information from the parents.5 According to the legal opinion cited to in the preceding paragraph, school districts must provide information about this option within the Notice of Procedural Safeguards that it distributes to parents. To comply with the five-day rule in cases where the sliding scale may apply, a district may either receive income information from parents within the five-day period and determine eligibility during that time, or request a BSEA hearing within the five days, and then withdraw the request if the parent demonstrates eligibility for full or partial funding of the IEE (assuming, of course, that a parent in this situation is satisfied with partial funding). The district is not excused from compliance with the five-day rule, however. Id.

In the instant case, in March of 2010, Parent requested the School to have its occupational therapist assess Student’s handwriting and related skills. The School conducted a “screening” which stated that Student “had no disability in this area,” and needed neither further evaluation nor OT services. Mother disagreed with this conclusion, and requested an IEE.

The School asserts that this “screening” was not an “evaluation” that would trigger the right to request an IEE. I disagree. Regardless of the terminology used, the occupational therapist had conducted observations and some tests, and used her professional judgment to determine that Student did not have a disability in this area, and to conclude that Student required neither services nor further evaluation. These conclusions belie the assertion that the screening was not enough of an “evaluation” for the Parent to dispute as such.6 In particular, the conclusion that Student needed no further evaluation constituted a representation that in the School’s view, the “screening” was comprehensive and appropriate enough to assess Student’s needs.7

Since Parent clearly disagreed with the School’s conclusion, and requested an IEE, the School had five school days to (1) decide to fund the IEE, or (2) request a hearing at the BSEA. At such a hearing, the School would have to defend its “screening” as fulfilling the requirement for a comprehensive and appropriate evaluation. The School did neither, however. Further, the School did not offer to conduct its own evaluation until after Parent had notified the Director of Special Education of her intention to arrange for the IEE and seek reimbursement, and did not actually conduct this evaluation until the start of the following school year.

The School has correctly stated the general rule that a school-based evaluation is a pre-requisite to a publicly-funded IEE. That rule is inapplicable here, however. In this case, Parent did not refuse to consent to a school-based evaluation. On the contrary, it was Parent who asked the school to evaluate Student in the manner that the School deemed appropriate, and the School refused to either conduct what it considered to be an evaluation or to designate its “screening” as an evaluation. The law does not allow the School to sidestep its obligations in this manner.

Finally, as noted in the Facts , above, in May 2010, Parent provided Framingham with income information that suggested potential eligibility for the sliding fee scale program. There is no information in the parties’ documents indicating the School’s response, if any. If the School had followed up with Parent on this subject, as required by statute and regulation, the entire matter might have been resolved prior to hearing.

For the reasons stated above, the School is not entitled to judgment in its favor as a matter of law, and the Motion to Dismiss and/or for Summary Judgment is DENIED.

_______________________ _____________________________

Original issue date: January 11, 2011

Sara Berman, Hearing Officer

_______________________________

Issue date of corrected version:

May 19, 2011


1

The School filed the Motion by fax on November 15, and the accompanying exhibits were received by mail on November 17, 2010.


2

Mother attached 39 exhibits to her Hearing Request, which will be designated Exhibits P-1 through P-39. The School attached 12 exhibits to its Response (SR-1 through SR-12) and 17 to its Motion (SM-1 through SM-17 ).


3

20 USC Sec. 1415(b)(1) and (d)(2)(A); 34 CFR Sec. 300.502, G.L. c. 71B, Sec. 3, 603 CMR 28.04(5).


4

34 CFR 300.502(b)(2).


5

GL c. 71B, Sec. 3, 603 CMR 28.04(5)(c).


6

This is a reasonable inference based on the undisputed facts.


7

Even if I were to determine that the OT “screening” did not constitute an evaluation, the School would be required to proceed to hearing within the five school day period, because Mother’s request would be deemed one for an IEE in an area “not assessed by the school district,” within the purview of 603 CMR 28.04(5)(d), cited above


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