Student v. Boston Public Schools – BSEA # 08-4873



<br /> Student v. Boston Public Schools – BSEA # 08-4873<br />

COMMONWEALTH OF MASSACHUSETTS

SPECIAL EDUCATION APPEALS

In Re: Student v. Boston Public Schools

BSEA # 08-4873

DECISION

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

On February 26, 2008, Parent filed a Request for Hearing in the above-referenced matter. The hearing was held on April 18, 2008, at the BSEA, 11 Dartmouth St., Malden, Massachusetts, before Hearing Officer Rosa I. Figueroa. Those present for all or part of the proceedings were:

Student’s Mother

Vincent Guy Parent’s friend

Michelle P. Parent’s sister-in-law

Jill Sweeney Education Team Facilitator, Boston Public Schools

Michael Murphy Assistant Program Director, Boston Public Schools

Elizabeth Kurlan, Esq. Unified Student Services, Senior Program Director,

Boston Public Schools

Alissa Ocasio, Esq. Attorney for Boston Public Schools

The official record of the hearing consists of documents submitted by the Parent and marked as exhibits PE-1 to PE-13 (PE-13B was excluded), PE-14 to PE-18 (PE-19, PE-20 and PE-21were excluded), and PE-22; documents submitted by Boston Public Schools (Boston) and marked as exhibits SE-1 through SE-18 (SE-9 was admitted over objection; Parent also objected to the date of “January 23” in SE-15 alleging that the correct date was “March 7”); recorded oral testimony and closing arguments.

Boston’s and Parent’s closing arguments were received on April 25, 2008. The record closed on April 25, 2008.

PROCEDURAL BACKGROUND AND OBJECTIONS OF THE PARTIES:

Prior to the Hearing, objections on admission of documents were addressed. The Parties also discussed clarification of the issues for hearing, consistent with a telephone conference call held on April 1, 2008. Parent’s right to proceed to hearing on any remaining issue not addressed by this decision is preserved.

HEARING ISSUES1 :

1. Whether Parent is entitled to reimbursement from Boston for the independent evaluations?2

2. Whether reimbursement should be at the Massachusetts Rate Setting rate or at a higher rate?

POSITION OF THE PARTIES:

Parent’s Position:

Parent argues that Student is entitled to a free and appropriate public education (FAPE), and states that if Parent has to pay for any portion of the independent evaluation, Student is being denied a FAPE. Parent states that the phrase “public expense” means that the district must either cover the expense of the independent evaluation in full, or ensure that an independent evaluation is provided at no cost to the parent.

In the alternative, Parent argues that a higher rate is available under the Massachusetts Division of Health Care Finance and Policy Regulations, 603 CMR 28.04(5)(a), if the student subject to the evaluation presents “unique circumstances.” According to Parent, that is the case here. As such, Parent requests an exemption from the regular rates and seeks an order from the BSEA that Boston pay for all three evaluations in full.

Boston’s Position:

Boston first argues that since it had not performed a neuropsychological or a speech and language evaluation of Student, technically, Parent was not entitled to an independent evaluation in these areas. Moreover, Parent did not return the consent form agreeing to have Boston perform a speech and language evaluation.

Boston also states that no license was provided by the Cognitive Development Center and the Massachusetts regulations regarding publicly funded evaluations require that the individual conducting the evaluation be registered, “certified or otherwise approved.”

Notwithstanding the aforementioned arguments, Boston agreed to reimburse Parent for the three independent evaluations she sought, at state rate setting rates. Those are: the neuropshychological, the educational/special education assessment by the Cognitive Development Center (CDC), and the speech and language evaluation. This offer was conveyed to Parent during the Resolution Session, and Boston stands by its offer to reimburse Parent at rate setting rates for all three evaluations.

Boston therefore, argues that the only issue before the BSEA is whether Parent is entitled to reimbursement at a rate higher than the one allowed, and since according to Boston, Parent cannot meet her burden of proof regarding this issue, Parent is not entitled to the remedy sought.

FINDINGS OF FACT

1. Student is a 12 year-old resident of Boston. (PE-22) The parties do not dispute his eligibility and entitlement to special education. He currently attends the Carroll School (Carroll) as a seventh grader. In the fall of 2003, Student was unilaterally placed at Carroll. (Testimony of Parent) If Student had remained in Boston, he would have been offered a program and services at the Mary Lyons School in Boston. (Testimony of Ms. Sweeney)

2. Student became due for his three-year re-evaluation on or about September 2006. (Testimony of Ms. Sweeney)

3. On September 12, 2006, Ms. Jill Sweeney, Evaluation Team Facilitator covering the Mary Lyons School, mailed a Notice of Reevaluation along with an Evaluation Consent Form to Parent. (Testimony of Ms. Sweeney) The Evaluation Consent Form called for an educational assessment and administration of the Woodcock- Johnson III Test of Achievement. (SE-1; Testimony of Ms. Sweeney)

4. Student underwent cranial reconstructive surgery during the summer of 2006, and remained out of school through October 2006. Acting in consultation with Carroll School Personnel, Parent and Ms. Murphy agreed to postpone Student’s three-year re-evaluation. (Testimony of Ms. Sweeney, Parent)

5. On or about January 9, 2007, Ms. Sweeney sent a “Second Request” for re-evaluation and Consent Form to Parent. (SE-2)

6. Upon receipt of the second request, Parent and Ms. Sweeney had a telephone conference during which they agreed to proceed with Student’s re-evaluation. (SE-3; Testimony of Ms. Sweeney)

7. On January 11, 2007, Parent signed the Consent for Evaluation Form accepting the testing proposed by Boston and requesting that the testing be administered at Carroll. (PE-10; SE-3; SE-4; Testimony of Parent) Parent did not request any other evaluations at that time but attached the end of the year testing performed by Carroll and Student’s most recent IOWA test results. (PE-10; SE-3)

8. Due to scheduling issues between Boston and Carroll, Student’s evaluation was not performed until May 2007. (Testimony of Ms. Sweeney) Parent was not concerned with the delay in performing the testing and stated that she thought it would be better since it would give the Parties an overview of the impact Student’s surgery had on him. (Testimony of Parent)

9. Jean D’Angelo, a former teacher of Student in Boston, performed Student’s Reading Assessment and the Woodcock-Johnson III Test of Achievement at Carroll, in May 2007. (PE-14; SE-3A; SE-4; SE-6) Based on the test results and classroom observations of Student, Ms. D’Angelo recommended continued special education services to address writing, “literacy, primarily spelling, fluency, vocabulary and comprehension.” (PE-14; SE-4) She recommended that services be offered in a highly structured, predictable environment where the routines were clear and consistent. She also recommended that instruction be multisensory, and delivered step by step, with a slow pace, using clear visual models. (PE-14; SE-4)

10. On May 22, 2007, Ms. Sweeney forwarded Parent an invitation to an IEP Team meeting to address Student’s re-evaluation. (SE-5; Testimony of Ms. Sweeney) The Team meeting took place on June 19, 2007. The results of Ms. D’ Angelo’s evaluation were discussed, and a new IEP was drafted. (SE-5; SE-6; SE-7; SE-7A) This IEP covered the period from June 2007 to June 2008, and offered Student participation in a full inclusion program at the Mary Lyons School. (SE-7A) Page 5 of 11 of this IEP describes the following special education services: special education services in the general education classroom for language arts ninety minutes per day, five days per week; and, behavioral/social-emotional services forty five minutes per day, five days per week. No other special education services are offered under this plan. ( Id. )

11. The 2007-2008 IEP dated June 19, 2007, was rejected in full by Parent on September 22, 2007. (SE-8) Along with the rejection Parent requested an independent evaluation, and asked Boston to forward to her the appropriate forms or to have a Boston staff member give her a call. (SE-8)

12. On September 25, 2007, Ms. Sweeney forwarded a form letter to Parent indicating that she was entitled to an Independent Education Evaluation (IEA) at public school expense for the evaluation conducted by Boston with which Parent disagreed, to wit “educational/special education assessment.” (SE-9) The letter further states

Please make sure that the provider you have chosen accepts the rates set by the Massachusetts Division of Health Care Finance and Policy. Upon return of the attached completed form indicating your selected provider(s), a letter will be forwarded to them directly stating the reimbursement rate.

If you have any questions about completing this form, or need information about where an independent educational evaluation may be obtained, or the agency criteria applicable for independent educational evaluations, please contact Lisa Martiesian… (SE-9)

A blank Request for Independent Evaluation Form ET-12 (ET-12 form) was attached to Ms. Sweeney’s letter with the upper portion completed by her. Said section provided Student’s information and indicated the educational assessment completed by Boston. (Testimony of Ms. Sweeney)

13. Following a telephone call between Parent and Ms. Sweeney, during which Parent informed Ms. Sweeney that she did not receive the forms, Ms. Sweeney forwarded a second letter and ET-12 form on October 9, 2007, similar to the one forwarded by Ms. Sweeney in September 2007. (SE-10A; Testimony of Ms. Sweeney) Ms. Sweeney completed the upper portion of the ET-12 form, which specifically stated that Parent had rejected the educational assessment completed by Boston, Woodcock-Johnson Test of Achievement. (SE-10A) The rejection referred to Boston’s evaluation performed by Ms. D’Angelo in May 2007. (Testimony of Ms. Sweeney) Ms. Sweeney testified that between September and October 2007 she had attended a workshop in Boston where she was instructed to be specific with respect to the type of test to which parents were entitled when requesting independent evaluations. (Testimony of Ms. Sweeney)

14. Student was evaluated at the Cognitive Development Center of Lexington (CDC) on November 28, 2007. (SE-11A)

15. On January 3, 2008, Parent wrote to Ms. Sweeney stating that Student’s teachers at Carroll had expressed concern regarding Student’s speech and recommenced that Student be seen by a Boston speech and language professional. (PE-9A; SE-11) Parent reported that Student continued to have difficulties in math and with organizational skills. Parent wished for a Team meeting to be convened at Carroll to discuss these concerns, and work on a plan to address them. Parent was eager for a support plan to begin the following month. (PE-9A; SE-11) She conveyed her desire for the Team3 meeting to take place on January 22, 23, 24, 28, 29 or 30, 2008. Attached to the letter, Parent included the report from the evaluation Student underwent at the CDC, Student’s report card, and notes from Carroll instructors, to provide Boston an opportunity to prepare for the meeting. Parent also re-sent the ET-12 form as she acknowledged that the one she forwarded in November was sent to the wrong fax number. (PE-9A; SE-11; SE-11A; Testimony of Parent)

16. A Carroll School (Carroll) release of information to Boston regarding an IEP meeting at Parent’s request is dated January 9, 2008. (PE-9C) This document appears attached to a letter drafted by Parent on January 3, 2008. (PE-9A) According to Ms. Sweeney, Boston received this document in February 2008. (SE-16; Testimony of Ms. Sweeney)

17. Ms. Sweeney testified that she received the January 3, 2008 letter approximately one week later, and testified that she did not understand from Parent’s letter that Parent wished to have Boston convene a Team meeting and that it be held at Carroll, but rather, thought that Parent was inviting her to participate at a meeting of Student’s team at Carroll. As such, she did not plan to attend the meeting. (Testimony of Ms. Sweeney) Ms. Sweeney testified that she was not available on the dates suggested by Parent in her letter. (Testimony of Ms. Sweeney)

18. The CDC report was a three-page letter, which recommended that Student attend Cognitive Development sessions twice per week at CDC to address his “visual and sensorimotor thinking”, and practice at home 20 to 30 minutes per day when not attending the center. The letter was signed by Andra Munger, Ph.D., CDC Director. (PE-13; SE-11A) Ms. Sweeney testified that she only received one of the three pages of this report but did not call Parent to inform her that her package was incomplete. (Testimony of Ms. Sweeney)

19. In the ET-12 attached to Parent’s letter, Parent provided Boston the information regarding CDC of Lexington and under specific evaluations requested by Parent listed Cognitive Development Evaluation (two hours at $270) and written report ($180). (PE-12; SE-12) This ET-12 was dated by Parent November 19, 2007. ( Id .)

20. Ms. Sweeney forwarded the ET-12 to Lisa Martiesian, Boston’s person responsible for authorizing payment of independent evaluations. (Testimony of Ms. Sweeney) Ms. Martiesien informed Ms. Sweeney that the form could not be processed because information regarding the evaluator’s licensing number was missing. ( Id. )

21. On January 22, 2008, Ms. Sweeney and Parent had another conversation during which Parent requested that Student be seen by a Boston speech and language pathologist for a brief consultation to ascertain whether Student’s problems with articulation warranted a speech and language evaluation. (Testimony of Parent) Ms. Sweeney agreed to ask a Boston speech and language staff member at the Beethoven School to take a look at Student. Ms. Sweeney contacted this person but as of the date of the hearing, the individual had not seen or assessed Student. (Testimony of Ms. Sweeney) Parent also requested that Boston conduct a psychological evaluation of Student. In this conversation, Ms. Sweeney and Parent discussed the Team meeting at Carroll School. Ms. Sweeney also informed Parent that the CDC evaluation request could not be processed because it lacked the center’s license number. ( Id. ) Parent mentioned that the evaluation had been conducted. (Testimony of Ms. Sweeney; Parent)

22. Ms. Sweeney testified that she called the CDC, and left a message for Dr. Munger, in an attempt to obtain the license number, but did not hear back from anyone at the CDC. (Testimony of Ms. Sweeney)

23. Following the telephone conversation of January 22, 2008, Parent wrote to Ms. Sweeney and attached a copy of the CDC report. (SE-14; SE-10) In her letter she stated,

I have given Carroll School a release of information so that the BPS Speech and Language professional can speak with Carol Hekman who is the speech and language pathologist at Carroll regarding [Student’s] concerns. The main phone number .…

I also followed up with Dr. Andra Munger of the Cognitive Development Center of Lexington (she was away and received your message and will follow-up with you directly), Lisa Martiesian had asked that I provide you with their Massachusetts and/or certification [number]. According to Dr. Munger there is no umbrella of licensure that covers services that Cognitive Development Center provides. I’m not sure what other documentation you might need but if you let me know I will be sure to get it from the provider.

I understood from our last conversation that Boston would be able to provide some additional testing for [Student]. I know last year was his 3 year evaluation (only the Woodcock-Johnson test of achievement was conducted along with a review of additional school testing and independent testing) but it would be helpful if you would let me know what testing would now be conducted and how soon.

Finally, would you please let me know when we might be able to have the TEAM meet to discuss the difficulties that [Student] is currently experiencing at school; can we meet one day next week at his school? I have attached an additional copy of the report from Cognitive Development Center.

24. Ms. Sweeney testified that she did not take Parent’s request for a “ TEAM meeting”, to be a request to convene the Boston Team. (Testimony of Ms. Sweeney)

25. Later in January 2008, Ms. Sweeney forwarded an Evaluation Consent Form to Parent dated January 23, 2008. (SE-15; PE-3; Testimony of Ms. Sweeney) Parent testified that she did not receive this consent form. (Testimony of Parent) The envelope containing the Consent Form dated January 23, 2008 was postmarked in Boston on March 5, 2008. (PE-3) This Consent to Evaluation form was received by Parent on March 7, 2008. ( Id. ) According to Ms. Sweeney, to date Boston has not received the signed consent to this evaluation. (Testimony of Ms. Sweeney)

26. The CDC letter/report does not conform with standard educational assessments as it does not contain the statistical data usually included in evaluation reports. (SE-11A; Testimony of Ms. Sweeney). Upon receipt of the CDC letter, Ms. Sweeney consulted with Mr. Michael Murphy, Assistant Program Director in Boston, her supervisor, who upon review of the letter concluded that it did not represent an educational evaluation report. (Testimony of Ms. Sweeney)

27. On February 12, 2008, Parent delivered a letter addressed to Ms. Sweeney, to Boston’s Special Education Office. (SE-16; Testimony of Parent) Ms. Sweeney did not receive a copy of the letter until February 25 or 26, 2008, following the February school vacation. Parent attached a second ET-12 form with this letter, requesting that Lynn Meltzer, PhD., of the Institute for Learning and Development perform an evaluation of Student. (SE-13) Parent dated this form January 3, 2008. The form called for the evaluator to administer the “WISC, SPRS, TLC, Rey, DKGFS, Speds, WIAT, etc.”. The evaluation would take ten hours at a cost of $3,550.00. (PE-11; SE-13)

28. At this time, Boston had not yet completed a psychological evaluation of Student. (Testimony of Ms. Sweeney) Ms. Sweeney testified that she was confused by the second ET-12 form because Boston had conducted an educational evaluation of Student and this form requested an independent psychological evaluation. ( Id. )

29. In the February 12, 2008, letter, Parent stated that she had not yet been contacted by the Boston speech and language pathologist for the consultation sought by Parent in this area since January 2008, and formally requested that a speech and language evaluation of Student be performed. (PE-8; SE-16) She explained that Student had undergone major facial reconstructive surgery in 2006 at which time she brought to the attention of the Team the need to resume speech and language once Student’s “jaw had been moved forward.” Parent notified Boston that if she did not receive a response from Boston by February 14, she would proceed with a private evaluation and forward the bill to Boston. She reminded Ms. Sweeney that she was still awaiting Boston’s response regarding convening of the Team to discuss the private evaluation/testing. Once again Parent inquired as to Boston’s position regarding the ET-12 forms she had sent Boston and inquired as to the testing completed by Boston. Parent stated that Boston’s test had “not looked at his executive functioning level, speech and language, attention and memory or cognitive functioning level,” even though the Team was aware of Student’s history of difficulties in those areas. (PE-8; SE-16)

30. In the February 12, 2008 letter, Parent also stated that she had not received an evaluation consent form from Boston, and concluded that the district was refusing to evaluate Student in those areas. (PE-8; SE-16) Since Boston had previously been provided the dates for Student’s independent evaluation testing, Parent decided she would proceed with the independent evaluations and forward the bills to Boston. (PE-8; SE-16)

31. In a letter dated February 26, 2008, Ms. Sweeney returned to Parent the ET-12 form Parent had sent dated November 2007, requesting an independent evaluation at the CDC because she never received the required license number from the CDC. (PE-4; SE-17) Ms. Sweeney also attached a copy of the evaluation consent form Parent had not received so that Boston could proceed with the additional tests. Ms. Sweeney reminded Parent that Boston was not responsible to cover the expense of an independent evaluation unless it first had an opportunity to assess Student in that particular area. ( Id. ) Lastly, she stated that testing would be scheduled and payment for the CDC evaluation would be arranged as soon as she received the signed forms. (PE-4; SE-17) The February 26, 2008 letter from Ms. Sweeney was mailed by Boston on March 4, 2008, and received by Parent on March 7, 2008. (PE-4)

32. Parent filed a Request for Hearing with the BSEA on February 26, 2008, seeking reimbursement for the independent evaluations. (PE-22)

33. Parent wrote to Boston on March 4, 2008 providing times when she was available to participate in a resolution session, which she suggested be held with Student’s Team at Carroll. Parent stated that Student’s “speech and language pathologist, school counselor, math teacher, language tutor and home room teacher” from Carroll would attend. (PE-7) Parent attached the BSEA Notice of Hearing issued on February 27, 2008. This letter was received in Boston on March 5, 2008. (PE-7)

34. On March 7, 2008, Parent wrote to Michael Murphy at Boston’s Unified Student Services, indicating that the evaluation Consent Form dated January 23, 2008 was not mailed to her until March 5, 2008. (PE-5) Parent protested that the consent forwarded to her would not provide Student the comprehensive, complete evaluation she sought. Parent noted that her previous verbal and written requests for Student to have a speech and language evaluation had not been mentioned. Parent also referred to her February 12, 2008 letter in which she indicated that she had not received the consent form. Parent informed Mr. Murphy that the independent evaluation had been completed and stated that Boston had failed to provide Student a comprehensive three-year evaluation. Parent requested full reimbursement for the cost of the evaluations. Parent also stated that the school had not convened the Team within 10 days of the date on which the evaluation was received. Parent also took issue with Boston’s non-responsive behavior regarding Student’s needs. (PE-5)

35. A second letter dated and hand delivered by Parent on March 7, 2008 to Mr. Murphy, reflects Parent’s response to Mr. Murphy following their conversation the same date. (PE-6) This letter restates the information reflected in the first letter, and proposes to waive the resolution session. (PE-6)

36. On March 10, 2008, Ms. Sweeney sent an Evaluation Consent Form to Parent seeking permission to proceed with a speech and language evaluation. (SE-18)

37. A resolution meeting took place on March 14, 2008. (PE-1) During the meeting, Boston agreed to fund all three evaluations sought by Parent (the educational/special education assessment at the CDC, neuropsychological and speech and language evaluations.) Boston agreed to reimburse Parent for all three evaluations at state rate setting rates. (PE-1) Parent rejected the offer.

38. Student’s Team reconvened on March 20, 2008, to discuss the evaluation performed by the CDC. (PE-1; PE-2; Testimony of Ms. Sweeney) During the meeting Parent requested that Boston perform an occupational therapy assessment of Student and signed a consent form. (SE-19; Testimony of Ms. Sweeney) According to Ms. Sweeney, this assessment has been completed. (Testimony of Ms. Sweeney)

39. Parent testified that she had never encountered any difficulties in getting reimbursement for the full amount for previous independent evaluations and therefore there was no way for her to expect that there would be problems with the educational, speech and language and neuropsychological evaluationsthat are the subject of this hearing. (Testimony of Parent)

40. On March 9 and March 16, 2008, Parent requested Partial Summary Judgment against Boston. (PE-16; PE-17) Boston Objected to Parent’s Motion for Partial Summary Judgment on March 19, 2008. (PE-15) Hearing Officer Putney-Yaceshyn denied this motion orally during a telephone conference call on March 18, 2008 because there were issues of fact in dispute, as evidenced in Boston’s response to the Hearing Request and Objection to Parent’s Motion for Partial Summary Judgment. (PE-18; Administrative record)

CONCLUSIONS OF LAW

Student is an individual with a disability falling within the purview of the Individuals with Disabilities Education Act4 (IDEA) and the state special education statute.5 As such, Student is entitled to a free appropriate public education (FAPE).6 Student’s eligibility status and entitlement to FAPE are not in dispute. In the case at bar, Parent disputes that her right to reimbursement for three independent evaluations is limited to that established by the state.

In its closing argument, Boston argued, first, that Parent was not legally entitled to reimbursement for the evaluations because they did not meet the definition of independent evaluations, and second, that Boston had already agreed to fund the three evaluations obtained by Parent at the rates set by the Massachusetts Division of Health Care Finance and Policy Regulations, pursuant to 603 CMR 28.04(5)(a). Therefore, Parent was entitled to nothing more.

Furthermore, Boston made it very clear in its opening statement that the issue for hearing was a very discrete one involving not whether Boston was agreeing to reimburse Parent for the evaluations, but rather the rate at which Parent should be reimbursed.7 Boston argued that school districts must abide by the state rates and that no special circumstances, justifying a higher rate had been demonstrated by Parent who carried the burden of proof.8

Upon consideration of, and relying upon the facts delineated in the Findings of Fact section of this decision, I conclude that the evidence presented at hearing does not support Parent’s claim for reimbursement for all three evaluations. Parent failed to meet her burden of persuasion pursuant to Schaeffer v . Weast , 126 S.Ct. 528 (2005)9 , with regard to her entitlement to reimbursement above the rates set by The Massachusetts Division of Health Care Finance and Policy Regulations for the educational and the speech and language evaluations. Similarly, Parent failed to make a showing that Student met the “unique circumstances” category, entitling her to reimbursement at a higher rate. However, the evidence as discussed below, shows that Boston failed to meet its mandates under federal and state regulations entitling Parent to reimbursement for the neuropsychological evaluation. My reasoning follows.

Whether Parent is entitled to reimbursement in an amount greater than that allowed under Massachusetts Division of Health Care Finance and Policy Regulations :

With regard to the rate of reimbursement, the sole issue before me, Parent made two separate arguments: 1) since the IDEA guarantees Student’s a FAPE, this translated into full reimbursement of the actual cost of the evaluations, even if the cost exceeded the rates allowed by the Massachusetts Division of Health Care Finance and Policy Regulations; and 2) because of Student’s surgery, he qualified for the “unique circumstances” category and therefore, Parent should be reimbursed at a higher rate .

Boston disagreed with Parent’s statements and instead asserted that 114.3 CMR 29.03(2)10 establishes the Massachusetts’ rate at which Parents may be entitled to reimbursement for independent neuropsychological evaluations. Boston argued that as a matter of law, any reimbursement to Parents must be consistent with 603 CMR 28.04(5)(a).

Legal Framework:

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

Evaluation conducted by a qualified examiner who is not employed by the public agency responsible for the education of the child in question. 34 CFR 300.502(a)(3)(i).

For purposes of this section, the term public agency is equivalent to local educational agency, that is, the particular school district responsible for the student in question. The right to an independent evaluation arises

If the parent disagrees with an evaluation obtained by the public agency, subject to the conditions in paragraphs (b)(2) through (4) of this section. 34 CFR 300.502(b)(1).

The federal regulations provide that the evaluation must be provided at public expense, that is,
that the public agency either pays for the full cost of the evaluation or ensures that the evaluation is otherwise provided at no cost to the parent, consistent with 300.103. 34 CFR 300.502(a)(3)(ii).

This means that the school district either pays the full cost of the evaluation sought by parent or that it offers parents an opportunity to obtain the desired independent evaluation by a provider who agrees to abide by the guidelines set by a state, so long as in the end, a parent is able to obtain an independent evaluation at no cost to the parent. In this regard, states are left to regulate further consistent with federal law. To ensure that parents are able to select providers who act in concert with state mandates, when a parent requests an independent evaluation, the federal regulations further require school districts to provide parents with

… information about where an independent educational evaluation may be obtained, and the agency criteria applicable for independent educational evaluations as set forth in paragraph (e) of this section. 34 CFR 300.502.

Federal regulations discourage unnecessary delays by school districts when a parent requests an independent evaluations and mandate the school district to either pay for the evaluation or request a hearing when it believes that its evaluation is appropriate or that the evaluation obtained by the parent failed to meet agency criteria. 34 CFR 300.502(b)(2).

Consistent with federal law and regulations, the Massachusetts special education regulations provide parents a right to independent evaluations. Regarding independent educational evaluations, 603 CMR 28.04(5)(a) provides

5. Independent education evaluations. Upon receipt of evaluation results, if a parent disagrees with an initial evaluation or reevaluation completed by the school district, then the parent may request an independent education evaluation.
(a) All independent education evaluations shall be conducted by qualified persons who are registered, certified, licensed or otherwise approved and who abide by the rates set by the state agency responsible for setting such rates. Unique circumstances of the student may justify an individual assessment rate that is higher than that normally allowed.

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

In general, both the federal and Massachusetts regulations interpret the right to an independent evaluation as arising after the school district has first conducted an evaluation in the area parent disputes. Massachusetts further provides that

If the parent is requesting an independent education evaluation in an area not assessed by the school district, … the school district shall respond in accordance with the requirements of federal law. The district shall either agree to pay for the independent education evaluation or within five school days, proceed to the Bureau of Special Education Appeals to show that its evaluation was comprehensive and appropriate. If the Bureau of Special Education Appeals finds that the school district’s evaluation was comprehensive and appropriate, then the school district shall not be obligated to pay for the independent education evaluation requested by the parent. 603 CMR 28.04(5)(d).

This regulation requires that a school district request a hearing within five school days of the date of receipt of a parent’s request for an independent evaluation in an area not previously assessed by the school district or pay for said evaluation.

The Massachusetts regulations also provide guidance requiring the independent evaluator to provide a report that includes a summary of the “procedures, assessments, results, and diagnostic impressions” in addition to relevant educational recommendations.12 603 CMR 28.04(5)(e).

In the case at bar, the facts show that Parent requested an independent educational evaluation, which was agreed to by Boston, and an independent neuropsychological evaluation, which Boston initially rejected. Regarding the speech and language evaluation, Parent had requested that Boston conduct a speech and language evaluation of Student shortly before requesting the BSEA Hearing in February 2008.

Under strict construction of the federal regulations, Parent’s speech and language and neuropsychological evaluations are not independent evaluations in the sense that the right to an independent evaluation arises after the district has first conducted its own evaluation. Only the independent educational assessment meets the strict federal criteria for independent educational evaluation. 34 CFR 300.502.

Parent is correct in arguing that the federal regulations state that an independent evaluation provided at “public expense” means at no cost to the parent. That is, the state must ensure that mechanisms are put in place to assure parents the right to obtain independent evaluations at no cost to them. It does not, however mean that a state cannot set guidelines that school districts must follow when providing independent evaluations to parents.

In Massachusetts, the special education regulations delineate the responsibilities of school districts when the independent evaluation sought by the parent is in an area not previously evaluated by the district. Consistent with the federal mandate that schools act expeditiously when they receive requests for independent evaluations, said section of the Massachusetts regulations requires school districts to either pay for the evaluation or request a hearing before the BSEA within five school days of the date on which it received Parent’s request for the independent evaluation. 603 CMR 28.04(5)(d). Once the request is made, if the district refuses to pay, it must file a hearing request. No other option is afforded under the Massachusetts regulations.

Since the circumstances surrounding the three independent evaluations for which Parent seeks reimbursement at a rate above the rate setting rates are different, I will discuss them separately.

Independent Educational Evaluation :

This evaluation was conducted by the CDC. Review of the letter submitted by Parent, which purports to be the report of the educational evaluation, lacks the elements required of an appropriate educational evaluation under the Massachusetts regulations. 603 CMR 28.04(5)(e). The letter lacks a list of the procedures and assessments or instruments used to evaluate Student, as well as the results of those assessments and an interpretation of the results. (PE-13; SE-11A) The document submitted by Parent in effect made it impossible for Boston to derive much use from this document.

In addition, the ET-12 Form for the educational evaluation, performed by Andra Munger, Ph.D., of the CDC, contains no license number13 , and in spite of the attempts made by Boston and Parent to obtain this information, the evaluator did not produce it. (PE-12; PE-13A: Testimony of Ms. Sweeney, Parent) No testimony was offered regarding the qualifications of Ms. Munger.

Thus both, proper information regarding the evaluator is missing, and the CDC letter purporting to be the report of the educational evaluation submitted fails to meet basic state criteria for what an educational evaluation must include.14 Notwithstanding these defects, Boston agreed to reimburse Parent for this evaluation and attempted to obtain the information needed to process Parent’s request. (Testimony of Ms. Sweeney)

Regarding the rate for reimbursement for this evaluation, the evidence shows that the forms forwarded by Boston to Parent addressing her request for independent evaluation specifically notified Parent that the provider chosen should abide by the rates set by the Massachusetts Division of Health Care Finance and Policy. Parent acknowledged receiving at least one of these notifications. (SE-10; Testimony of Parent) Furthermore, the form letter stated Boston’s commitment to forwarding a letter to the evaluators stating the reimbursement rate “upon return of the attached completed form indicating [Parent’s] selected provider.” (SE-9; SE-10) Beyond the testimony offered by Ms. Sweeney regarding the difficulties she encountered in trying to obtain the license number of Ms. Munger, the record lacks evidence as to whether this information was finally obtained. (Testimony of Ms. Sweeney) All that is clear is that Parent requested an educational independent evaluation in response to the one conducted by Boston in May 2007, and that Boston agreed to pay at Massachusetts rate setting rates.

Under the Massachusetts Division of Health Care Finance and Policy regulation the allowable fee for this particular evaluation under 114.3 CMR 30.01(4), is $262.91 for an educational assessment and written report.15 This is the reimbursement amount to which Parent is entitled.

Independent Speech and Language Evaluation :

Parent requested that Boston conduct a speech and language evaluation on February 22, 2008, but thereafter, never consented to the evaluation when Boston forwarded the consent for evaluation form. (PE-9A; SE-11; SE-14; Testimony of Sweeney, Parent) The record reflects that prior to February 2008, Parent had requested that Boston conduct only an informal speech and language assessment. ( Id. ) Since Parent did not consent to the speech and language evaluation by Boston, this evaluation had not taken place at the time of hearing. However, sometime prior to hearing, Parent proceeded with an independent speech and language evaluation for Student, and requested that Boston reimburse her for this evaluation.

Parent presented no information whatsoever regarding her independent speech and language evaluation, or evidence to support her request for reimbursement at a rate higher than the rate setting rate. Furthermore, no ET-12 Form regarding this evaluation is available. No curriculum vitae, certificate, or licensure information regarding the evaluator was provided as part of Parent’s exhibits. In the absence of an ET-12 properly completed, Boston could not ascertain whether the individual possessed the qualifications required by the Division of Health Care Finance and Policy to perform the assessments for which she was retained. I note that Boston is entitled to the aforementioned information, before Parent is reimbursed.

Parent knew before proceeding with the independent speech and language evaluation, that she had not yet consented to Boston performing its own speech and language evaluation, and that Boston would not pay anything over the rate setting rate. Thus, when she decided to proceed with the independent speech and language evaluation at a rate greater than the one allowed by the Massachusetts Division of Health Care Finance and Policy, Parent did so at her own risk. At the resolution session in an attempt to resolve the issues for hearing, Boston agreed to fund this evaluation at rate setting rates. The evidence does not support Parent’s request for reimbursement at a rate higher than what Boston has agreed to pay for this evaluation, that is, $166.04 for a speech and language evaluation.

Neuropsychological :

The issues surrounding the independent neuropsychological evaluation differ greatly from the other two requests. The evidence shows that as of Tuesday, February 12, 2008, four days before the February school vacation, Boston was on notice that Parent sought an independent neuropsychological evaluation. (SE-16; Testimony of Parent) Boston’s argument that the request was made on an improper form, that is, Parent used an ET-12 Form to request it, is wholly unpersuasive.

The ET-12 Form states in its heading that the evaluation is “pursuant to 603 C.M.R. 28.04 (5) and the appropriate Massachusetts Division of Health Care Finance and Policy Regulations 114.3, C.M.R. 30.00 TEAM Evaluation Services.” (PE-11; PE-12; SE-12; SE-13) Parent acknowledged receiving the aforementioned documents when she requested the independent educational evaluation, and used the ET-12 Form to indicate her desire to move forward with a neuropsychological evaluation. (PE-11; SE-13) Since Boston had not performed this type of evaluation, it was clear that Parent was requesting an evaluation in an area not assessed by Boston, thus triggering responsibilities on Boston’s part, which Boston ignored.

On its face, the ET-12 Form included the minimal information required by Boston in order to process an independent evaluation request. It is entitled “Request for Independent Evaluation Form.” (PE-11; SE-13) Considering its title, and the fact that Parent had previously been required to complete it when she requested the educational evaluation, it is understandable that Parent, a lay-person, assumed that she could use the ET-12 Form to request other evaluations. The document calls for the upper section to be completed by Boston and the remainder by the provider selected by the parent. The information required on this form is the name of the evaluator, the name and address and phone number of the facility where the person works, the license number, the name of the assessment, the anticipated time required to complete it, and the proposed charge. (PE-11; SE-13)

The ET-12 Form for the neuropsychological evaluation signed and dated by Parent January 3, 2008, received by Boston in February 2008, provides the information required. (PE-11; SE-13; Testimony of Ms. Sweeney) It lists Lynn Meltzer, Ph.D., from the Institute of Learning and Development, license number 3005, as the individual performing the neuropsychological assessment.(PE-11; SE-13) The form also includes the evaluator’s address, telephone and facsimile numbers, lists the specific assessments to be conducted, and estimates that it will take ten hours to complete the evaluation/report at a cost of $ 3,550.00. (Id.)

Thus, regardless of the form used by Parent, Boston was on notice that Parent sought an independent neuropsycological evaluation, and was legally responsible to act on the request at that time. Consistent with Massachusetts and federal law, its options were to provide Parent a list of psychologists that performed neuropsychological evaluations at rate setting rates, agree to pay for the evaluation, or file a request for hearing within five days of the date of receipt of the request.

The record contains no documentation to support that, consistent with 34 CFR 300.502, Boston provided Parent with information about where an “independent educational evaluation may be obtained, that met agency criteria applicable for independent evaluations.”

The evidence shows that Boston did not forward the list informing Parent where she could obtain her independent neuropsychological evaluation consistent with 34 CFR 300.502. Similarly, once it was clear that Parent was seeking an evaluation in an area not previously assessed by the district, Boston failed to request a hearing within five days of the day of receipt of Parent’s request for an independent neuro-psychological evaluation, pursuant to 603 CMR 28.04(5)(d).

Ms. Sweeney testified that she did not receive Parent’s request for an independent neuropsychological evaluation until February 25 or 26, 2008, because of school vacation and because that is how long it takes for mail to arrive from one office to another in Boston. Parent testified that cognizant of the difficulties she experienced in the past regarding mailings to Boston, she attempted to mail, fax or bring things to different offices in Boston to expedite matters. Parent hand-delivered the request for the independent neuropsychological evaluation to Boston’s Special Education Office on February 12, 2008. State and federal regulations require that the date on which a notice arrives in the district is the date that triggers applicable timelines and the responsibilities that arise as a result of said notice, not the date on which a particular individual within the district receives the document. Here, the date on which Boston, the “public agency”, received notice of Parent’s intention to proceed with an independent neuropsychological evaluation was Tuesday, February 12, 2008. At that point, Boston had two options: pay for the evaluation or request a hearing by February 25, 2008. Even assuming arguendo that Ms. Sweeney did not receive the letter until February 25, 2008, and that Boston’s responsibility was not triggered until that date, Boston did not forward information regarding where to obtain this evaluation at rate setting rates, did not agree to pay for the evaluation sought by Parent, and did not request a hearing before the BSEA as it was mandated to do. The evidence does not support Boston’s claim that Parent’s entitlement to reimbursement for the neuropsychological evaluation is limited to the rate setting rate.

Unique Circumstances :

Lastly, I turn to Parent’s allegation that Student fits the unique circumstances, or individual consideration category, as termed by the Massachusetts Division of Health Care Finance and Policy regulations. A finding that Student presents with unique circumstances would entitle Parent to a higher amount of reimbursement because it considers that some students may present with challenges that require a more complex or unique evaluation. The phrase unique circumstances is found in the Massachusetts Special Education Regulations addressing reimbursement for independent evaluations, which states in pertinent part

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

Individual Consideration (I.C.) is defined as

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

The record lacks any showing that Student’s needs are so unique that they warrant individual consideration. The evidence here is lacking in both information and specificity making it impossible to evaluate Parent’s claim of “unique circumstances.”16

Additionally, there is no evidence other than a statement by Parent, to show that Parent seriously made all reasonable attempts to identify or locate qualified evaluators who would abide by the Massachusetts rate-setting rates, and only found those who demanded a higher fee because of the unique circumstances.17 The fact that Student underwent surgery in and of itself, is insufficient to support a finding that more than one year after the surgery his needs met the unique circumstances category. Additionally, qualification for “unique circumstances/individual consideration” is something that should be raised by the evaluator prior to initiating the evaluation based on the particular circumstances presented by the student. In this situation, parents always have the option of seeking clarification by requesting a hearing with the BSEA before proceeding with an independent evaluation.

The evidence shows that Parent did not meet her burden of proof regarding reimbursement at an amount greater than the one offered by Boston for the educational, neuropsychological, or the speech and language evaluations on the basis of individual consideration. The evidence supports a finding in favor of Boston in this regard.

If Parent disagrees with the amounts allowed by the Massachusetts Division of Health Care Finance and Policy, Parent’s recourse is not with the BSEA, as the BSEA has no jurisdiction over the rates set by the Division of Health Care Finance and Policy.

ORDER:

1. Parent failed to meet her burden of proof regarding entitlement to reimbursement for independent educational and speech and language evaluations at a rate greater than that allowed by the Massachusetts Division of Health Care Finance and Policy.

2. Boston shall reimburse Parent for the full cost of the neuropsychological evaluation.

3. Boston is entitled to receive the name and licensing/certificate number of the person who conducted the independent speech and language evaluation, before reimbursing Parent at rate setting rate.

4. Boston shall provide in writing to Parent the name and specific address of the designated person to which all of Parent’s future correspondence regarding Student’s special education must be mailed, or hand-delivered.

So Ordered by the Hearing Officer,

_____________________________________

Rosa I. Figueroa

Dated: May 20, 2008

May 20, 2008


1

The issues for hearing were clarified by Hearing Officer Catherine Putney-Yaceshyn during a telephone conference call on April 1, 2008. This is consistent with Parent’s request for Hearing, which identifies reimbursement for the cost of independent evaluations as the sole remedy sought. This matter was administratively re-assigned to Hearing Officer Rosa Figueroa on April 17, 2008. Prior to commencement of the Hearing Parent attempted to raise additional issues and stated that these had been mentioned in her request for hearing. Parent was advised that since she did not raise them during the conference call of April 1, 2008, when the previous hearing officer asked about the issues for hearing and framed the issues as they appear in this section, and since Parent did not identify any remedy in her Hearing Request other than reimbursement, she was limited to the aforementioned issues.for purposes of this Hearing. Parent was advised that her right to proceed on additional issues not addressed in this decision was preserved.


2

Although this was the first issue identified by Hearing Officer Putney-Yaceshyn during the conference call of April 1, 2008, by the time of the Hearing, Boston had agreed that this was no longer an issue as it had agreed to reimburse Parent for the three evaluations; rather, only the amount of the reimbursement was at issue.


3

“… I would like to schedule a TEAM meeting ASAP at Carroll to review the issues and devise a plan of action.” (SE-11)


4

20 USC 1400 et seq .


5

MGL c. 71B.


6

MGL c. 71B, ss. 1 (definition of FAPE), 2, 3.


7

In its closing argument Boston argued that as a matter of law it was not responsible to reimburse Parent for any of the three evaluations, first because Boston had not had an opportunity to conduct its own neuropsychological or speech and language evaluation before Parent went ahead with the private evaluations, and second, regarding the educational evaluation, that Parent had failed to provide the CDC licensing number required for an independent evaluation to be publicly funded. Consistent with 603 CMR 28.04(5)(a), an Independent Educational Evaluation must be conducted by a qualified person who is “registered, certified, licensed or otherwise approved…”. In the hopes of reaching an agreement with Parent prior to the Hearing, Boston offered to reimburse Parent for all three evaluations during the Resolution session. Boston stated that this offer was still standing at the time of the Hearing. Relying on this position it moved for a directed verdict. Therefore, based on Boston’s offer and representations, I decline to discuss the merits of whether Parent was entitled to the independent evaluations and address the issue of the rate at which Parent must be compensated.


8

At hearing Boston moved for a directed verdict, which was denied, and Boston proceeded to present evidence in support of its position.


9

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


10

“ Effect of Regulation . The rates of payment contained in 114.3 CMR 29.00 constitute full compensation for services rendered to publicly-aided individuals as well as for administrative or supervisory duties associated with those patient services.”


11

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


12

“ Whenever possible, the independent education evaluation shall be completed and a written report sent no later than 30 days after the date the parent requests the independent education evaluation. If publicly funded, the report shall be sent to the parents and to the school district. The independent evaluator shall be requested to provide a report that summarizes, in writing, procedures, assessments, results, and diagnostic impressions as well as educationally relevant recommendations for meeting identified needs of the student. The independent evaluator may recommend appropriate types of placements but shall not recommend specific classrooms or schools.” 603 CMR 28.04(5)(e).


13

The regulations promulgated by the Division of Health Care Finance and Policy, provide at 114.3 CMR 30.00, “rates of payment by governmental units for Team Evaluation Services as mandated under MGL c. 71 B and 603 CMR 28.00.” The general provisions specifically assume that the evaluation services are to be provided by authorized professionals. 114.3 CMR 30.01(1). 114.3 CMR 30.01(2) defines authorized professional as

An individual who, at minimum, meets the qualifications for the particular assessment services to be performed as specified below, as well as such requirements as have been or may be adopted from time to time by a governmental unit purchasing assessments from eligible providers.


14

See also 34 CFR 300.502 (b)(2) (ii).


15

For a typical comprehensive neuropsychological assessment, the Regulation allows $62.70 per hour for a maximum of 8 to 12 hours. 114.3 CMR 30.01(4).


16

See In Re: Student v. Triton R.S.D ., BSEA # 07-6361 (2007).


17

See In Re: Foxboro Regional Charter School , BSEA # 06-3158.


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