Student v. Mount Greylock Regional School District – BSEA # 06-6459



<br /> Student v. Mount Greylock Regional School District – BSEA # 06-6459R<br />

COMMONWEALTH OF MASSACHUSETTS

SPECIAL EDUCATION APPEALS

In Re : Student v. Mount Greylock Regional School District

BSEA # 06-6459

Ruling on School’s Request for Postponement of the Hearing, Student’s Opposition to the Postponement Request and Student’s Motion for Advanced Scheduling

Student filed a request for Hearing in the above referenced matter on June 20, 2006. In the request Student expressed the desire to proceed to Hearing expeditiously stating that Student has been without an appropriate educational program since January 2006 and that the last accepted IEP expired in February 2006. Student requested an advancement of the Hearing under Rule II (F) of The Hearing Rules for Special Education Appeals. Mount Greylock Regional School District (Mount Greylock) requested a postponement of the Hearing on July 5, 2006 and proposed Hearing dates in August 2006.

On July 6 th , Student submitted an Opposition to Mount Greylock’s Postponement Request arguing further risk of unfair delay by the district. Student asserts that Mount Greylock failed to respond to Student’s Request for Hearing by June 30 th and failed to convene the first meting of the Resolution Session by July 5th, the fifteenth day according to the timelines established by the IDEA 2004. Student opposed any postponements or further delays and requested that the case be heard promptly as he remains at serious educational and social/behavioral risk.

Mount Greylock’s attorney responded to Parent’s attorney the same date stating that the district had engaged him as counsel on July1, 2006, and that he had left a message for Parent’s counsel on July 1 st while the latter was on vacation. Mount Greylock’s attorney further stated that he would be meeting with the Director of Pupil Services on Monday July 10, 2006, to review the record and provide a response to the hearing request and stated that the district was open to participation in a resolution meeting or mediation. Via letter addressed to the BSEA also dated July 6, 2006, Mount Greylock’s attorney provided the district’s availability to proceed to hearing during the first two weeks in August 2006, and requested a telephone conference call. A separate order was issued on July 6, 2006 setting the conference call for July 11, 2006, a date agreeable to both parties. As of the date of issuance of this Ruling, no other document was received from Mount Greylock.

The IDEA 2004 brought many procedural changes to due process hearings, the most significant of which is a last opportunity for the parties to attempt resolution of the issues prior to engaging in formal litigation and the due process hearing. The IDEA 2004 further establishes a thirty (30) day1 timeline to complete a resolution session upon the parent’s proper filing of a request for Hearing. 20 U.S.C. § 1415 (f)(1)(B)(ii). The district is responsible to convene the first meeting of the resolution session within fifteen (15) days of the date of receipt of the request for hearing. 20 U.S.C. § 1415 (f)(1)(B)(i) (I). Under IDEA 2004, the school district convenes the meeting within fifteen (15) days and the parent must attend if s/he wishes to proceed to the due process hearing. 20 U.S.C. § 1415 (f)(1)(B)(i)&(ii). A parent’s ability to proceed to Hearing is premised on the parent’s participation in the resolution session, unless both parties agree in writing to waive participation or agree to engage in mediation in lieu of the resolution meeting. 20 U.S.C. § 1415 (f)(1)(B)(IV).

In keeping with the intent of the statute, the BSEA established what the consequence to the school district would be for failing to convene the resolution session by the 15 th day. Footnote 1, of Rule 1F, of The Hearing Rules for Special Education Appeals specifically states that,

If the school district fails to convene a resolution meeting within fifteen days of receipt of the hearing request, it shall be deemed to have waived the resolution session, and the hearing may occur.

There is no indication in the instant case that Mount Greylock did not receive Student’s Hearing Request the same date the BSEA received it, June 20, 2006. The Hearing Notice issued by the BSEA on June 21 st provided the deadlines by which each specific event should occur in accordance with the IDEA 2004. The Hearing Notice scheduled the Hearing for July 25, 2006, at 10:00 AM at the BSEA. It also provided the following deadlines:

Deadlines

For Filing Response to Hearing Request: June 30, 2006

To Challenge Sufficiency of Hearing Request: July 5, 2006

For Convening Resolution Meeting: July 5, 2006

End of the 30-Day Resolution Session: July 20, 2006

BSEA proceedings present emotionally charged situations for parents, students and school districts. Amidst this climate, it is essential that in order to resolve matters, whether it be informally or via a decision, the parties maintain open effective communication. While the parties are always encouraged to keep the lines of communication open and attempt resolution of the issues, an aggrieved party should not be penalized by delays not caused by that party. Since Mount Greylock was on notice of the aforementioned deadlines and since it failed to convene the resolution meeting within the 15 days allowed by the statute, Student may proceed to hearing without participating in a resolution session.

In his motion, Student also argues that Mount Greylock missed the deadline to file its response to the Hearing Request. IDEA 2004 calls for the respondent to file a response to the request for hearing within the first ten (10) days2 except where the school district has given the parent prior written notice addressing the issues raised by the parent in the hearing request. There is no indication that prior written notice was received by Student. Both sides are in agreement that a response to the Hearing Request has not been provided within the timeline stated by IDEA 2004. The soonest a response can be expected is July 10, 2006, the date in which the Director of Pupil Services and Mount Greylock’s attorney will meet.

If a resolution session is going to provide parties a real opportunity to resolve concerns, both sides need to go into it knowing the position of the opposing party. A response to a hearing request is therefore most effective when it is available prior to the resolution meeting. Thereafter, its purpose changes and it becomes a litigation tool more than a statement of a party position for purposes of resolution. Mount Greylock is ordered to provide its response to Student’s hearing request by the close of business on July 12, 2006.

Given the circumstances and timelines discussed above, Parent’s request to advance the hearing is DENIED. Barring agreement by the parties to a short continuance, Mount Greylock’s request to postpone the hearing, received on July 5, 2006 is DENIED and Parent’s Opposition is GRANTED. The hearing will proceed on July 25, 2006 as stated in the Notice of Hearing.

So Ordered by the Hearing Officer,

______________________________________

Rosa I. Figueroa

Dated: July 11, 2006


1

“ If the local educational agency has not resolved the complaint to the satisfaction of the parents within 30 days of the receipt of the complaint, the due process hearing may occur, and all of the applicable timelines for a due process hearing under this part shall commence.” 20 U.S.C. § 1415(1)(B)(ii).


2

LOCAL EDUCATIONAL AGENCY RESPONSE.—
(I) IN GENERAL.—If the local educational agency has not sent a prior written notice to the parent regarding the subject matter contained in the parent’s due process complaint notice, such local educational agency shall, within 10 days of receiving the complaint, send to the parent a response that shall include—

(aa) an explanation of why the agency proposed or refused to take the action raised in the

complaint;

(bb) a description of other options that the IEP Tram considered and the reasons why

those options were rejected;

(cc) a description of each evaluation procedure, assessment, record or report the agency

used as the basis for the proposed or refused action; and

(dd) a description of the factors that are relevant to the agency’s proposal or refusal. 20 U.S.C. §1415 (c)(2)(B)(i)(I).


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