Student v. Springfield Public Schools and Department of Social Services – BSEA# 08-3378



<br /> Student v. Springfield Public Schools and Department of Social Services – BSEA# 08-3378<br />

COMONWEALTH OF MASSACHUSETTS

SPECIAL EDUCATION APPEALS

In Re : Student v. Springfield Public Schools & Department of Social Services

BSEA # 08-3378

Ruling on Springfield Public Schools’ Motion To Dismiss and Educational Surrogate Parent’s Motion for Summary Judgment

Procedural History :

On January 22, 2008, Springfield Public Schools (Springfield) filed a Motion to Dismiss and Memorandum of Law in the above referenced matter. That same day, Student’s Educational Surrogate Parent (ESP) responded with an Opposition to the School District’s Motion to Dismiss and a Memorandum of Law.

Student is in the custody of the Department of Social Services (DSS) under a CHINS petition, and DSS was joined at the request of Springfield, via ruling issued on January 10, 2008.

A Motion Session/ Pre-Hearing Conference was scheduled to take place in Worcester, Massachusetts on March 7, 2008, a date agreed to by all Parties. Attorney Brian Clauson, who represented the ESP, participated in the Pre-Hearing Conference via telephone conference call. At the Pre-Hearing Conference the issues for hearing were discussed and clarified. At the request of the Parties, in discussion with the Hearing Officer, it was agreed that the motion session would be continued to April 4, 2008 at which time testimony was expected from Parent, as well as other witnesses regarding Springfield’s Motion to Dismiss.

Following the March 7, 2008, Pre-Hearing Conference, Springfield forwarded a letter to the ESP’s attorney and the Bureau of Special Education Appeals (BSEA), conceding Springfield’s failure to invite the ESP to the Team meeting in December 2007, and offering compensatory education by way of a summer reading program. Springfield stipulated that the interruption in services was equivalent to 39 days, from December 12, 2007 to February 15, 2008, when Student’s Team convened with Attorney Cushna, the ESP, in attendance.

On March 17, 2008, the ESP filed a response arguing that,

… the facts are not in dispute regarding the days the child was truant for the previous and current school years. (P-Exhibit 22, p.2, A3) After the evidentiary hearing on the District’s Motion to Dismiss, the ESP respectfully suggests that the remaining legal issue should be addressed through a Motion for Summary Judgment. The District is unwilling to stipulate, and in fact now denies, that it had a legal obligation to re-convene the Team to address the student’s poor attendance and, that the failure to re-convene denied [Student] a FAPE when it became clear the child was not making effective progress toward the goals in her IEP, [including the time from December 12, 2007 through February 15, 2008 when no current IEP was proposed].

Any resolution of this matter will require the requested stipulation specifically indicating that the child was denied a FAPE due to the failure of the TEAM to re-convene to address the student’s poor attendance and, if related to her disability, determine the appropriate services to which [Student] was entitled.

In light of Springfield’s offer1 , the ESP’s letter, and in consideration of the discussions and arguments made during the Pre-Hearing Conference of March 7, 2008, the issues for hearing were narrowed and clarified via Order dated March 21, 2008.

The remaining issues identified at the Pre-Hearing Conference, stated below, became moot on March 10, 2008, when Springfield, via letter received that day, conceded the procedural violations, and offered to compensate Student by offering her participation in an intensive reading program during the summer 2008.

1. Whether Springfield violated Student’s/ESP’s procedural due process rights during the period from December 12, 2007 to February 15, 2008, by failing to invite the ESP to the Team meetings during the relevant time period, and failing to include the ESP in the Team process.

2. Whether Springfield’s failure to include the ESP in the Team process resulted in a denial of a FAPE to the Student entitling her to receive compensatory education services from Springfield.

Ruling:

This Ruling 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.

A Hearing on Springfield’s Motion to Dismiss was held on April 4, 2008, at the office of Catuogno Court Reporting, in Springfield, Massachusetts, before Hearing Officer Rosa I. Figueroa. Prior to commencement of the taking of the testimony on Springfield’s Motion to Dismiss, the issues were clarified and attorney Clauson was given an opportunity to share and discuss Springfield’s offer for reading summer programming, with the ESP. The ESP accepted the offer on behalf of Student and the Parties were advised that I would retain jurisdiction over any issues arising out of the Parties disagreement over the particulars regarding the summer program. Also, the issues for hearing were clarified on the record.

This Ruling also addresses the ESP’s Motion for Summary Decision as argued by the ESP in her letter of March 17, 2008, and at Hearing.

Those present for all or part of the Motion session were:

Bryan Clauson, Esq. Attorney for the Educational Surrogate Parent

Student’s Mother

Celso Lopez Spanish speaking interpreter

Eneida M. Madho Social Worker, Department of Social Services

Sylvia D. Rosario Social Worker, Department of Social Services

Erica E. Cushna, Esq. Guardian at Litem / Educational Surrogate Parent

Brian Pariser, Esq. Attorney for the Department of Social Services

Gloria Falcon Attendance Specialist, Springfield Public Schools

Katherine Brandts Evaluation Team Leader, Springfield Public Schools

Beth DanForth Special Education Intern

Nancy Retchin Middle School Special Education Supervisor, Springfield Public Schools

Alisa St. Florian, Esq. Attorney for Springfield Public Schools

The official record of the hearing on Springfield’s Motion to Dismiss and the ESP’s Motion for Summary Judgment consists of the motions and arguments submitted by the Parties in January 2007, documents submitted by Springfield and marked as exhibits SE-1 through SE-6, and the ESP’s exhibits marked as exhibits PE-1 through PE-27; recorded oral testimony and oral closing arguments. The record closed on April 4, 2007.

Issues:

Pursuant to the Pre-Hearing Conference held on March 7, 2008, the following issues remain as the only issues for Hearing subject to Springfield’s Motion to Dismiss:

1. Whether Springfield violated Student’s/Parent’s procedural due process rights during the period from December 7, 2006 to December 6, 2007 by failing to provide Parent information regarding Team meetings, the Notice of Procedural Safeguards and all other relevant communication in Spanish, as well as participation at Team meetings with the assistance of a Spanish interpreter.

2. Whether as a result of Springfield’s failure to provide information to Parent in Spanish, resulting in her acceptance of the IEP for the 2006-2007 school year, Student received inappropriate services and was denied a FAPE.

Regarding Parent’s Motion for Summary Judgment:

3. Whether Springfield was legally obligated to re-convene Student’s Team to discuss Student’s poor attendance at school during the life of the 2006-2007 IEP, which resulted in her failure to make effective progress.

4. If so, whether Student is entitled to receive compensatory education services as a result of Springfield Public Schools’ failure to re-convene the Team and offer Student a FAPE for the period from December 7, 2006 to December 6, 2007.

5. Whether Springfield violated Student’s procedural due process rights by failing to convene the team to discuss Student’s absenteeism during the December 2007 through February 2008 period, depriving Student of a FAPE.

Position of the Parties regarding both Motions:

Educational Surrogate Parent’s Position :

The ESP asserts that Springfield knew or should have known that Parent required a Spanish speaking interpreter and that all communications from the district to her, including invitations to the Team meetings, IEPs, and others, should have been translated into Spanish. Additionally, according to the ESP, Parent was not provided an interpreter during the Team meetings thereby rendering her involvement in the IEP process inappropriate. The ESP states that as a result of Springfield’s failure to provide an interpreter/translator, Parent did not understand the services offered in the IEP she accepted for the 2006-2007 school year, which were inappropriate, and resulted in a denial of FAPE to Student. According to the ESP, Springfield’s “home language survey” completed at the Parent Information Center in August 2006, states “English is the dominant language and the language spoken in the home.”

The ESP argues that since Student was truant during the 2006-2007 school year, and displayed the same pattern during the 2007-2008 school year, Springfield was responsible to reconvene the Team to address Student’s poor attendance. The ESP argues that Springfield’s attendance policy mandates that no child that has been absent for more than 13 days of truancy should be promoted, which the ESP equates to a clear finding that the child is not making effective progress.

The ESP requests that after addressing the issues in the Motion to Dismiss, the remaining issues be addressed through a Motion for Summary Judgment. According to the ESP, Student’s poor attendance was something for which Springfield should have convened the Team as it became clear that Student was not making effective progress toward the goals and objectives in her IEP for the period from December 2006- December 2007 and December 12, 2007- February 15, 2008. The ESP argues that any resolution of this matter satisfactory to her must include a stipulation that Student “was denied a FAPE due to the failure of the Team to reconvene to address the student’s poor attendance and, if related to her disability, determine the appropriate service to which Student was entitled.”

Springfield’s Position :

Springfield argues that the ESP’s request for hearing was filed on December 10, 2007, four days after expiration of a fully accepted IEP, which precludes the ESP from revisiting the IEP for the period from December 2006 through December 2007. In so arguing, Springfield relies on previous case law and BSEA decisions holding that hearing officers lack authority to revisit IEPs where a parent has had an opportunity to participate in the development of an IEP, and that IEP is subsequently accepted in full and implemented by the school district. Springfield asserts that this is precisely the case in the instant matter and therefore, moves for dismissal.

Regarding parental participation, Springfield further argues that even if it failed to forward the IEP to Parent in Spanish, it attempted to meet with Parent, invited her to the Team meeting in December 2006, met with Parent in January 2007, and in March, Springfield’s personnel met, translated, and explained all the relevant parts of the IEP before Parent signed it accepting it in full.

Springfield denies that it violated Student’s/ Parent’s procedural due process rights and states that Student is not entitled to compensatory education services for the 2006-2007 IEP period.

Springfield states that if the case is dismissed, the BSEA needs not consider the issue of whether Springfield was responsible to convene the Team to discuss Student’s poor attendance. It states that nothing in the federal or state law and regulations requires the school district to convene a Student’s Team to discuss absenteeism, and argues that Springfield took multiple steps to address the issue of absenteeism through calls, filing of two MGL c. 119 §51A and a CHINS petition, as well as meetings in Parent’s home and at school. Therefore, it addressed the issue appropriately even if it did not formally convene the Team.

Additionally Springfield argues that the fact that Student has a history of school truancy, which is not related to her disability, cannot be the basis for a finding that Springfield failed to provide her with a FAPE.

Department of Social Services Position:

The Department of Social Services (DSS) denies the allegations raised by the ESP. It states that the DSS social worker assigned to work with Parent is fluent in Spanish and that all communications between her and Parent were in Spanish. DSS further stated that Springfield did not violate Parent’s rights and that if Springfield failed to forward documents translated into Spanish, no harm resulted from this as Springfield personnel fluent in Spanish explained the IEP and services to Parent before Parent accepted the 2006-2007 IEP.

Facts2 :

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1. Student is a 15 year-old resident of Springfield, MA. (SE-6) On August 2, 2006, Parent approached Springfield and completed a survey of the language spoken in the home by Student, which states that Student is equally fluent in Spanish and English. Student has been diagnosed with an Anxiety Disorder and Post Traumatic Stress Disorder for which she is on medication. (SE-2; PE-5) She also presents with a specific learning disability and communication deficits. (PE-2)

2. Student’s 2004-2005 IEP indicates that the IEP must be translated for Parent into Spanish. (PE-3) It also states that Student’s primary language is Spanish. ( Id. )

3. Student entered Springfield in August 2006 with an IEP drafted by Holyoke Public Schools3 dated December 1, 2005. That IEP covered the period from December 1, 2005 through November 20, 2006. (SE-3) On August 28, 2006, Parent accepted the comparable IEP and placement offered by Springfield and signed a release of information. (SE-4; SE-6)

4. Since entering Springfield, two IEPs4 have been proposed for Student. (SE-1; SE-2)

5. Student’s attendance issues began early in September 2006. (Testimony of Ms. Falcon) Her poor attendance issues can be traced back to when Student was in the fifth grade in the Holyoke Public Schools. (PE-6)

6. Gloria Falcon, Attendance Specialist, in Springfield, a native Spanish speaker, was responsible for tracking attendance at the Van Sickle Middle School, where Student was assigned. (Testimony of Ms. Falcon) Springfield’s attendance policy is delineated in PE-9.

7. When a student first arrives in Springfield the parents are directed to the Bureau of Pupil Services (BPS) where information about the family is gathered. (SE-4; Testimony of Ms. Brandts) The form completed on behalf of Student’s family at the BPS states that the language spoken in the home is English. ( Id .)

8. On October 10, 2006, Ms. Falcon filed with DSS a report under MGL c. 119 §51A (§51A) as a result of Student’s failure to attend her program at the Van Sickle Middle School. (SE-6; Testimony of Ms. Falcon)

9. Ms Falcon became aware of Student’s school truancy in September 2006, as she was one of the first students to be truant during the 2006-2007 school year. (Testimony of Ms. Falcon) Other siblings of Student were also truants. ( Id .) Every day, Ms. Falcon runs an attendance report and flags students at the third, tenth and so on, days of absence. (Testimony of Ms. Falcon)

10. On October 11, 2006, Ms. Falcon sent a letter to Parent indicating that Student had been absent at least three days and informing Parent of the school policy that “once a student reaches 12 absences in the school year, his/her grades shall be no credit (N/C) pending appeal.” The letter, written in English, stated that if Parent did not respond within 7 days, the matter would be referred to the next level for investigation and review. (SE-7; Testimony of Ms. Falcon)

11. Student was truant approximately 70 days between September 4 and December 22, 2006, and forty-four days between January 2 and March 20, 2007. (PE-7) Springfield’s Responses to Parent’s Interrogatories dated February 29, 2008, show that Student was truant a total of 158 days during the 2006-2007 school year. (PE-22, p. 2, A.3)

12. Ms. Falcon visited Student’s home for the first time in October 2006 after filing the §51A. (Testimony of Ms. Falcon) Ms. Madho, the DSS social worker, arrived shortly thereafter. Springfield and DSS were collaborating to get Student to attend school. During the visit, Ms. Falcon discussed Student’s attendance and the importance of going to school with Parent and Student (who was in the room but did not say anything). Ms. Falcon asked Parent for her phone number, and at first, Parent stated that she did not have one. Approximately ten minutes into the meeting, the phone rang in the apartment and Parent gave her phone number to Ms. Falcon. Ms. Falcon described Parent as very quiet, and reserved, and stated that Parent agreed with what was being discussed. During the meeting, Parent related her concern that Student was too big to be in the sixth grade. Ms Falcon made several additional visits to the home to discuss Student and other issues regarding Student’s siblings, and also called Parent on the phone every two or three weeks (never less than once per month) through the remainder of the 2006-2007 school year. (Testimony of Ms. Falcon) By December 2006 she had made three visits to the home. Ms. Falcon testified that she was not always successful in reaching Parent over the phone. ( Id. ).

13. In Springfield, Ms. Falcon consulted with Student’s guidance counselor, the vice-principal at Van Sickle Middle School, and with Ms. Walker regarding the steps she was taking to get Student to school and ways in which to motivate Student to attend school. (Testimony of Ms. Falcon)

14. On November 16, 2006, Ms. Falcon filed a second §51A for Student’s continued, extremely poor attendance at the Van Sickle Middle School, and because “DSS was not doing anything to get Student to school.” (SE-6; Testimony of Ms. Falcon)

15. Katherine Brandts, Evaluation Team Leader (ETL) in Springfield, was Student’s ETL during the 2006-2007 school year. (Testimony of Ms. Brandts) She was the individual responsible to communicate with parents to invite them to the team meetings and ensure that the IEPs were later returned with the parents’ signatures. (Testimony of Ms. Brandts)

16. Ms. Brandts chaired Student’s annual IEP meeting in December 2006. (Testimony of Ms. Brandts) She forwarded an invitation to Parent to attend the December team meeting on November 30, 2006. (SE-5; PE-27) Said invitation was in English since at the time she forwarded the invitation, she did not know whether Parent spoke English or Spanish. (Testimony of Ms. Brandts) She testified that the form completed at the BPS stated that the dominant language, and the language spoken in the home, was English. (SE-6; Testimony of Ms. Brandts) A Team meeting invitation was also forwarded to the DSS social worker. (PE-14) Parent did not attend the Team meeting.

17. When Parent did not return the signed IEP, Ms. Brandts spoke to Ms. Falcon and asked her to help her get Parent’s signature. (Testimony of Ms. Brandts) The Van Sickle school personnel knew that Ms. Falcon communicated with Parent and that Ms. Falcon was fluent in Spanish. (Testimony of Ms. Falcon)

18. The IEP dated December 7, 2006 covered the period through December 6, 2007. It offered Student participation in a full inclusion program at the Van Sickle Middle School5 , with direct services offered in English language arts, mathematics, science and technology, and history and social sciences in the general education classrooms. (PE-1; SE-1) The Additional Information section of the IEP reflects that Springfield’s “Attendance Officer, along with Guidance ha[ve] been working with DSS on getting [Student] to come more frequently to school.” (PE-1; SE-1) This IEP does not include the speech and language therapy services provided to Student under the Holyoke Public Schools’ IEP.6 (PE-3; PE-1)

19. In mid December 2006, Ms. Madho, requested that a team meeting be convened in Springfield with herself, Margaret Walker, Ms. Falcon, Parent, and Student, to address Student’s attendance. Ms. Mahdo assured Ms. Falcon that both Student and Parent would be present. The meeting was held on January 3, 2007. During the meeting, the possibility of moving Student from the sixth to the seventh grade was discussed, as Student was too old to be in the sixth grade and she did not want to come to school. Ms. Madho brought a contract, which Parent signed. The meeting was mostly conducted in Spanish and everything said or written in English was translated for Parent. (Testimony of Ms. Falcon) As an incentive to have Student attend school, the Team agreed to promote her to the seventh grade. (Testimony of Ms. Falcon; Ms. Brandts)

20. On February 16, 2007, after exhausting all other possibilities without success, Ms. Falcon requested that Timothy Duquette of Springfield file a CHINS petition. (Testimony of Ms. Falcon)

21. On March 19, 2007, Parent and Ms. Falcon had a meeting to discuss Student’s attendance issues. Since Ms. Falcon knew that Ms. Brandts was concerned that Parent had not responded to the IEP, she called Ms. Brandts to her office to present and discuss the IEP with Parent.

22. Ms. Falcon testified that the meeting lasted between 45 minutes to one hour. Ms. Brandts testified, and Ms. Falcon corroborated, that various parts of the IEP, such as the types of services offered, times and frequency in the delivery of services, teachers’ statements, progress reports, and other parts of the IEP, were translated and explained to Parent. Parent’s options regarding signature on the IEP were also explained. (Testimony of Ms. Brandts) According to Ms. Falcon, Parent was quiet during the meeting and did not ask many questions. Prior to this meeting, Ms. Brandts had mailed several copies of the IEP to Parent, but could not remember if she had sent any copies in Spanish. By March 19 th , Ms. Brandts was aware that Parent spoke Spanish, not English. (Testimony of Ms. Falcon, Ms. Brandts)

23. On March 19, 2007, the procedural safeguards were not handed to or translated for Parent. (Testimony of Ms. Brandts) Ms. Brandts testified that she would typically send a copy of the procedural safeguards to parents when she sent requests for consent to evaluation and with initial IEPs. Ms. Brandts was not aware that she should send the procedural safeguards every time she forwarded an IEP to Parent. (Testimony of Ms. Brandts)

24. Ms Falcon testified that in her dealings with Parent, Ms. Falcon was always direct but not confrontational. In Ms. Falcon’s opinion, Parent understood things better when they were explained to her than when she had to read it from a document because she could ask questions. (Testimony of Ms. Falcon)

25. Following the March 19, 2007 meeting with Ms. Brandts and Ms. Falcon, Parent accepted Student’s December 2006-2007 IEP in full. (SE-1; Testimony of Ms. Brandts, Ms. Falcon)

26. Student underwent a Mini-Battery of Achievement Testing on October 16, 2007. (PE-15) Her grade equivalence scores in basic skills, reading, writing, mathematics, and factual knowledge fell between the 1.9 and the 2.8 grade level. ( Id. )

27. On November 27, 2007, Student was appointed a Guardian ad Litem / Educational Surrogate Parent through the Hampden County Juvenile Court. (PE-10)

28. On December 6, 2007, Springfield received notification that a Guardian Ad Litem /Educational Surrogate Parent had been appointed for Student by the Hampden County Juvenile Court. (PE-10) Ms. Sylvia D. Rosario, the DSS social worker assigned to work with the family, confirmed her intention to attend the Team meeting via letter dated December 7, 2007.

29. Parent’s request for hearing was filed on December 10, 2007, four days after expiration of the 2006-2007 IEP previously accepted by Parent in full.

30. On December 12, 2007, Springfield convened Student’s Team to draft an IEP for the period from December 12, 2007 through December 11, 2008. (SE-2) Although Springfield was aware that a GAL/ESP had been assigned to Student, the ESP was not invited to participate in the Team meeting. At the request of the ESP, and pursuant to a BSEA Order issued on January 29, 2008, Springfield reconvened Student’s Team on February 15, 2008. (PE-16)

31. The February 2008 to February 2009 IEP offered Student placement in a substantially separate classroom for English language arts, mathematics, science and technology, history /social studies, and speech and language which she would receive twice a week for 45 minutes each. The ESP accepted this IEP. (PE-17; Administrative record)

Conclusions of Law:

Springfield’s Motion to Dismiss:

Both the Standard Adjudicatory Rules of Practice and Procedure7 governing BSEA proceedings, and Rule 17 B of the Hearing Rules for Special Education Appeals , provide that a Hearing Officer may allow a motion to dismiss if the moving party fails to state a claim upon which relief may be granted.

The Standard Adjudicatory Rules of Practice and Procedure , 801 CMR 1.01(7)(g)(3) and Rule XVII B 38 of the Hearing Rules for Special Education Appeals provide the standards regarding Motions to Dismiss. As discussed in In Re: Norfolk County Agricultural School , BSEA # 06-0390 (Berman, 2006),

… A BSEA Hearing Officer may allow a motion to dismiss if the party requesting the appeal fails to state a claim on which relief can be granted. Since this rule is analogous to Rule 12(b)(6) of the Federal and Massachusetts Rules of Civil Procedure, BSEA hearing officers have generally used the same standards as the courts in deciding motions to dismiss for failure to state a claim. Specifically a motion to dismiss should be granted only if the party filing the appeal can prove no set of facts in support of his or her claim that would entitle him or her to relief that the BSEA has authority to order. That is, a hearing officer may dismiss a case if he or she cannot grant relief under either the federal or state special education statutes or the relevant portions of Section 504 of the Rehabilitation Act.

The Federal Courts have allowed motions to dismiss under Federal Rule of Civil procedure12 (b)(6) where the court found “beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.”9 Further guidance is provided in Calderon-Ortiz v. LaBoy-Alvarado , 300 F.3d 60 (1 st Cir. 2002) where the court stated that “accepting as true all well-pleaded factual averments and indulging all reasonable inferences in the plaintiff’s favor” a motion to dismiss will be denied if recovery can be justified under applicable legal theory. The aforementioned standard indicates that dismissal is appropriate only if Springfield can prove that the facts regarding translation and provision of information to Parent in Spanish, her primary language, do not support Student’s claim under any applicable legal theory. In deciding this motion, I consider all pertinent allegations in Student’s request for hearing to be true, as well as the uncontested facts delineated in the previous section in this decision, and draw all reasonable inferences, in favor of the non-moving party, that is, Student.

Also, consistent with Schaeffer v . Weast , 126 S.Ct. 528 (2005), which imposes the burden of proof in an administrative hearing on the party seeking relief, Springfield carries the burden of proof regarding its Motion to Dismiss.

In the instant case, Springfield argues that while it may not have forwarded all communications to Parent in Spanish, it afforded Parent opportunities to participate in the development of Student’s programming by inviting her to participate in the Team meeting, and asserts that one or more Spanish-speaking individual was always available to assist Parent and translate information for her during all of the meetings in which Parent participated. (Testimony of Ms. Falcon) Therefore, Parent understood what Springfield offered Student in the 2006-2007 IEP when she signed accepting the IEP in full in March 2007.

Contrary to Springfield’s position, the ESP argues that Parent did not attend the Team meeting where the 2006-2007 IEP was developed and asserts that contrary to what the BPS (SE-4) states, the primary language in the home is Spanish. The fact that Student had Spanish language dominance was also stated in the testing performed by Holyoke in 2004. Later, Parent was not provided an IEP translated into Spanish, nor was she given a copy of the Parents Rights Brochure translated into Spanish. These facts are supported by the evidence. The ESP further argues that Springfield was aware that the primary language in the home was Spanish because it sent notices to the home in Spanish. According to the ESP, the result was that Parent was forced to sign an IEP drafted in English without understanding its contents.

The IDEA Federal Regulations provide that parent’s consent means being fully informed of all information relevant to the activity for which consent is sought. Further support for this definition can be found in federal court cases. In Shawsheen Valey Regional Vocational Technical School Committee v. Commonwealth of Massachusetts Bureau of Special Education Appeals , 367 F. Supp 2d 44 (D. Mass. 2005), the Court considered whether the parents in that case had sufficient knowledge or understanding of their rights to consent to the IEP. Additionally, the First Circuit’s interpretation of consent under the federal regulations extends to a parent’s acceptance of an IEP.10 In the instant case, Parent’s decision may have been voluntary but the record, evaluated in the light most favorable to the ESP, is unclear as to how much Parent knew about the decision she was called to make, because neither, the IEP nor the Parent’s Right’s Brochure were given to her in Spanish.

Turning to the facts pertinent to this issue, the record lacks sufficient documentary information to ascertain what documents were or not forwarded to Parent in Spanish. Ms. Brandts testified that she had limited recollection with respect to this but did not think that she forwarded the invitation to the December 2006 Team meeting in Spanish nor did she forward a copy of the IEP translated into Spanish. (Testimony of Ms. Brandts)

The record however, shows that one or more Spanish-speaking individual was present at every meeting Parent had with Springfield. Ms. Falcon was present at the meeting in January 3, 2007 when Parent came to Springfield with Student to discuss attendance and programming issues and it was Ms. Falcon who translated and explained the IEP to Parent on March 19, 2007, before Parent signed the IEP accepting it in full. Ms. Falcon, who is a native Spanish speaker, was also the individual who communicated with Parent over the telephone and visited the home on numerous occasions. Additionally, the DSS social worker present on January 3, 2007 and during the October 2006 visit to the home, was also fluent in Spanish. (Testimony of Ms. Falcon)

The ESP is correct that Springfield’s failure to provide notice, a copy of the IEP, and the Parents Rights Brochure to Parent in Spanish is technically a violation of Student’s and Parent’s procedural due process rights, which for purpose of a Motion to Dismiss, is sufficient to deny Springfield’s request.

The IEP was not forwarded to Parent in Spanish, and even when portions of the document were translated and explained to Parent by Ms. Falcon during the meeting of March 19, 2007, (all of which occurred prior to Parent signing and accepting the IEP) the entire IEP was not translated and it is unclear how much Parent actually understood before giving her consent. Similarly, Parent was not given the Parents Rights Brochure in Spanish, a document which Ms. Falcon and Ms. Brandts did not discuss or translate for Parent. Furthermore, neither Ms. Falcon nor Ms. Brandts could point to the specific portions of the IEP that were translated. Both were general in their description, stated only that the relevant portions of the IEP had been discussed, and Ms. Brandts could mention only a few sections. (Testimony of Ms. Brandts) Both however, conceded that the whole IEP had not been translated into Spanish. Without Parent’s testimony to clarify whether Parent knew what her procedural rights were and that she understood them, I cannot conclude that she actually did for the purpose of this Motion.

While it is clear that Springfield technically violated Parent’s/ Student’s due process rights by failing to forward notices and Student’s IEP in Spanish as required under federal11 and state12 regulations (sufficient to overcome the standard in a motion to dismiss), no evidence was presented to ascertain what harm if any was suffered by Student as a result of Springfield’s violation. DSS pointed out that the ESP failed to present evidence that Parent, as the educational decision-maker, would have acted any differently had the IEP been forwarded to her in Spanish as opposed to having had the IEP translated and explained to her in Spanish. Additionally, the December 2006 IEP was not the first IEP Parent saw or accepted, as Student arrived from Holyoke with an accepted IEP. (PE-3) Moreover, Ms. Falcon offered credible testimony, that she provided a verbal translation and explanation of all relevant parts of the IEP and that in her opinion, her explanation was more thorough than what Parent might have been able to extract from her own reading of the IEP.

I note, that unless the ESP provides additional evidentiary support for her position at a Hearing on the merits, in looking at the totality of the circumstances and taking into account the sworn testimony already heard, the ESP may be unable to show that Parent suffered harm as a result of Springfield’s transgressions, or more importantly that Student was denied a FAPE. Ms. Falcon offered convincing testimony that Parent seemed disengaged from the process. Ms. Falcon first initiated contact with Student and Parent the end of September and made her first visit to the home in October 2006. (Testimony of Ms. Falcon) During that first visit, Parent stated that she did not have a telephone number, but later agreed to release the phone number to Ms. Falcon when the phone rang during the visit. No evidence was presented to show that Parent initiated any communication with school personnel or that she took an active role at any of the meetings whether in school or in the home. Nevertheless, she held educational decision-making for Student during most of the life of the 2006-2007 IEP.

The testimony is persuasive that Springfield personnel, fluent in Spanish, was in contact with Parent throughout the 2006-2007 school year, and the 2006-2007 IEP was translated and explained to Parent by Ms. Falcon, prior to Parent signing and accepting the IEP in full, in March 200713 . Given the evidence already in the record, at a full evidentiary hearing Springfield may be able to show that it made numerous efforts to engage Parent in the IEP process and that language was not what stood in the way of Student’s participation in the program. (Testimony of Ms. Falcon)

Lastly, Springfield asserts that Parent’s request for hearing was filed on December 10, 2007, four days after expiration of a fully accepted IEP, which precludes Parent from revisiting the IEP for the period from December 2006 through December 2007. In making this argument, Springfield relies on previous case law and BSEA decisions holding that where a parent has had an opportunity to participate in the development of an IEP which is subsequently accepted in full and implemented by the school district, hearing officers lack authority to revisit them. Springfield relies on In Re: Mary , BSEA # 07-0982, a decision issued by Hearing Officer Raymond Oliver who explained that

Both the courts and the BSEA have repeatedly held that Hearing Officers are precluded from revisiting/re-opening accepted IEPs that have expired where parents have participated in the development of the IEP; parents have received notice of their options for rejection of an IEP and proceeding to a due process hearing; parents have chosen to accept the IEP; and parents have never rejected the IEP during its term. See Chris A. v. Stow Pubic Schools 16 EHLR 1304 (MA 1990), affirmed on appeal, Amann v. Stow School System , 982 F.2d 644 at 651 (1992). See also Burlington v. Department of Education , 736 F.2d 773 at 776 (1984); Burlington v. Department of Education , 471 U.S. 359 at 373 (1985); Amherst- Pelham Regional School District v. Department of Education , 376 Mass. 480 at 483 (1978); Manchester School District v. Christopher B ., 19 IDELR 143 at 147 (DNH); In Re: Marblehead Public Schools , 7 MSER 176 at 180 (SEA Mass 2002); In Re: Arlington Public Schools , 8 MSER 133 at 135 (SEA Mass 2002); In Re: Fair Heaven Public Schools , 12 MSER 95 (SEA Mass 2006).

As a general rule, the aforementioned position is correct so long as Parent had sufficient knowledge or understanding of her rights to consent to the IEP,14 the question on which the first part of Springfield’s Motion to dismiss is premised.

The record shows that the ESP did not challenge the 2006-2007 IEP during its life, a point the ESP concedes as well as the fact that Parent did not request additional services despite Student’s lack of progress. The ESP however, argues that since Springfield failed to implement the requirements of 603 CMR 28.07(8)15 , regarding communication to parents in both English and the primary language of the home, the Parent’s consent cannot be deemed valid. As such, the BSEA should take jurisdiction over the IEP even if the ESP challenged the accepted IEP after it expired.

While it is true that the ESP’s challenge to the December 2006 IEP did not occur until after expiration of the accepted IEP, and having determined that failure to forward information in Spanish to Parent without having heard Parent’s position, raises questions regarding the validity of her consent to the IEP, I conclude that the BSEA is not precluded from revisiting/re-opening this particular IEP even when it was challenged after its expiration. Since Parental consent is at issue, this matter can be distinguished from In Re: Mary , BSEA #07-0982 (Oliver, 2007).

Therefore, in light of the above, I find that Springfield did not meet its burden of persuasion regarding the Motion to Dismiss. Whether or not the ESP would actually prevail at Hearing is not what is being decided here, but rather the ESP’s right to proceed on her claim.

I next consider the issue of whether Student received inappropriate services and was denied a FAPE as a result of Springfield’s failure to provide information to Parent in Spanish, resulting in Parent’s acceptance of the IEP for the 2006-2007 school year. No determination can be made at this juncture regarding this issue because Student’s absenteeism makes it impossible to make such determination.

Issues Regarding ESP’s request for Summary Decision:

The ESP states that Springfield was legally obligated to re-convene Student’s Team to discuss Student’s poor attendance during the life of the 2006-2007 IEP, which according to the ESP, resulted in Student’s failure to make effective progress. The ESP argues that Student is therefore entitled to receive compensatory education services for the period from December 7, 2006 to December 6, 2007 when she did not receive a FAPE. The ESP states that Springfield also denied Student a FAPE during the period from December 2007 through February 2008 for its failure to convene the team to discuss Student’s absenteeism. The ESP asserts that since the facts surrounding these issues are not in dispute, she is entitled to summary decision as a matter of law.

Rule 1.01(7)(h) of The Standard Rules of Practice and Procedure (801 CMR 1.01et seq.) applicable in BSEA hearings, provides that

When a Party is of the opinion there is no genuine issue of fact relating to allow part of a claim or defense and he is entitled to prevail as a matter of law, the Party may move, with or without supporting affidavits, for summary decision on the claim or defense. If the motion is granted as to part of a claim or defense that is not dispositive of the case, further proceedings shall be held on the remaining issues.

Further guidance can be found in Hunter v. Barnstable School Committee , 456 F. Supp. 2d 255, 214 Ed. Law Rep. 627 (2006)

Summary judgment is warranted if, after reviewing the facts in the light most favorable to the non-moving party, no genuine issues of material fact remain and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc. , 477 U.S. at 247-48; Calero-Cerezo v. U.S. Dep’t of Justice , 355 F.3d 6, 19 (1 st Cir. 2004). A genuine issue of fact is one that a reasonable jury, on the record before the court, could resolve in favor of either party. Anderson , 477 U.S. at 248. A fact is material when it might affect the outcome of the suit under the governing law.” Hayes v. Douglas Dynamics, Inc. , 8 F.3d 88.90 (1 st Cir. 1993) (citing Anderson , 477 U.S. at 248). In making its determination, this Court must view the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in its favor. Anderson , 477 U.S. at 255. the movant has the initial burden of production, which it can meet either by offering evidence to disprove an element of the plaintiff’s case or by demonstrating an “ absence of evidence to support the nonmoving party’s case.” Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).

Once the movant has met its burden, the non-moving party must “go beyond the pleadings and by its own affidavits, or by the depositions, answers to interrogatori4s and admissions on file, designate specific facts showing that there is an genuine issue for trial.” Id. At 324 (internal quotation marks omitted). Genuine factual conflicts will necessitate a trial where the resolution of a disputed fact holds the potential to change the outcome of the case. Calero-Cerezo , 355 F.3d at 19.

Relying on PE-22 (Springfield’s response to Parent’s First set of Interrogatories), the ESP asserts that no genuine issue of facts exists regarding his motion. In pertinent parts, the answers to the interrogatories state that Student was truant 156 days, during the 2006-2007 school year, and that Springfield convened three Team meetings between December 2006 and February 2008. (PE-22) For purposes of deciding motions for summary judgment the facts must be reviewed in the light most favorable to the non-moving party, that is Springfield. Anderson v. Liberty Lobby, Inc. , 477 U.S. at 247-48; Calero-Cerezo v. U.S. Dep’t of Justice , 355 F.3d 6, 19 (1 st Cir. 2004).

Springfield is correct that nothing in the IDEA or the Massachusetts statute and regulations requires a school district to convene a student’s team to address absenteeism unless a member of the Team, believing that the absenteeism is related to the student’s disability, requests reconvening of the Team. Springfield is correct that the Team is responsible to determine whether a student’s IEP is reasonably calculated to offer Student a FAPE in the least restrictive environment. (PE-22) In its Answers to Parent’s Interrogatories, Springfield further states that the Team would also evaluate whether any issues, such as attendance or behavior, interfere with a student’s receipt of services and access to the curriculum. The Team would seek to address them to the extent that they do not interfere with the receipt of FAPE. (PE-22 p.3 A-8)

Ms. Falcon testified that members of Student’s team met multiple times throughout the 2006-2007 school year to address Student’s absenteeism. (Testimony of Ms. Falcon) While there is no affirmative duty on Springfield’s part to convene the Team to address attendance, even when the Team was not convened for this specific purpose, school personnel with relevant information and specialized knowledge met to discuss Student’s issues. (Testimony of Ms. Falcon) Ms. Falcon met with the school’s counselor and the vice-principal to discuss ways in which to help motivate Student to return to school. Additionally, members of Student’s Team met with Mother and Student on January 3, 2007 to discuss this issue. This group considered Student’s concern that she was too old to be in the sixth grade and agreed to promote her to the seventh grade in an attempt to motivate her to attend school. The record shows that Parent is a very quiet, passive person who has displayed little interest in or involvement with Student’s school attendance. On at least one occasion, she attempted to conceal that she had a telephone and declined to provide the number when it was requested until after the phone rang.

The record lacks evidence to support the ESP’s contention. Furthermore, the ESP presented no evidence to establish that Student’s poor attendance was the result of her disabilities. Clearly, no student can expect to make any progress if said student misses school approximately 70 days between September and December, and a total of 158 days in the school year. Given Student’s extreme absenteeism it would have been impossible for her to progress at all, as she was virtually never in school. In order to avail herself of an education, Student had to be in school and she chose not to attend. Ms. Falcon testified that after her initial meetings with Parent, Student was observed to get dressed and leave the house (according to Parent), but she would not go to school. Student was reportedly seen leaving her building with her boyfriend on some occasions. On others, she would start walking towards school but then turn around and not enter the school building. (Testimony of Ms. Falcon) The record lacks any evidence regarding Student’s motives for not going to school or her whereabouts during the day, except when seen leaving with her boyfriend, or on days that Parent reported she returned to the house shortly after getting dressed and leaving the house to go to school. (Testimony of Ms. Falcon) The ESP carried the burden of proof regarding this issue and she did not meet her burden.

Lack of progress within the meaning of IDEA is related to situations such as those where a student while receiving the accepted services in the IEP, is unable to progress effectively; or where the district fails to provide the services to which the student is entitled, resulting in the student’s lack of effective progress; or where the quality of the services is deficient impacting upon the student’s ability to progress. Failure to make effective progress within the meaning of the IDEA presumes failure by the district to offer or implement all or a part of said student’s IEP, or that the services are inappropriate and fail to meet the student’s needs. A school district cannot be faulted for a student’s lack of effective progress when the reason for not accessing the program and services falls on the student’s decision not to avail him/herself of an education, or, as in the instant case, extreme absenteeism, unless the student can show that the absenteeism is related to the student’s disabilities.

Here, Springfield offered credible, reliable evidence to show that it took multiple steps to involve Parent in Student’s education and to work with the family to address Student’s needs and her absenteeism. Ms. Falcon, who is a native Spanish speaker, met with Parent in her home, as well as with Student. She initiated two §51As and a CHINS petition in addition to working with the DSS social worker assigned to work with Student and her family in an attempt to return Student to school. She communicated her concerns and information to Springfield’s personnel, and was instrumental in conveying information back to Parent and in interpreting and translating the relevant portions of the proposed IEP to Parent. Ms. Falcon made phone calls, visited the home, met with Parent on January 3, 2007 (which meeting was conducted mostly in Spanish), and on March 19, 2007. (Testimony of Ms. Falcon) Ms. Falcon’s persistence and tenacity in engaging Student and Parent in Student’s education was admirable.

The ESP provided not a scintilla of evidence to rebut the school’s case or to promote its own views in support of its Motion for Summary Decision by showing that Student’s absenteeism was related to her disabilities, or that the IDEA requires that a student’s Team meet every time a student is truant from school. Parent and a DSS social worker were listed in the ESP’s witness list, subpoenas were issued, and an interpreter provided at her request. However, none of the aforementioned witnesses were called. Instead, the ESP relied on the argument that FAPE was per se denied because the IDEA would require Springfield to convene a Team to address a student’s absenteeism as the lack of progress that would result from a student’s absenteeism. Within the context of this case, and without facts to support it, I disagree.

In deciding motions for summary decision, the evidence to be considered must be viewed in the light most favorable to the non-moving party, in this case Springfield. Anderson v. Liberty Lobby, Inc ., 477 US 242, 255 (1986); Parker v. Universidad de Puerto Rico , 25 F.3d 1, 3 (1 st Cir. 2000). In the case at bar, Parent’s failure to present any relevant persuasive evidence to support its position, in contrast to the evidence presented by Springfield, can only result in a Denial of Parent’s Request for Summary Decision.

Order:

1. Springfield’s Motion to Dismiss is DENIED .

2. The ESP’s Motion for Summary Judgment is DENIED .

3. The ESP’s attorney shall inform the BSEA in writing by the close of business on May 5, 2008 if she desires to move forward with a Hearing on the merits. Since the issues for Hearing are directly related to the subject of these motions, the testimony already provided by Ms. Falcon and Ms. Brandts will be used as part of the record in the Hearing on the merits. Supplemental testimony may be added.

So Ordered by the Hearing Officer,

________________________________________

Rosa I. Figueroa

Dated: April 28, 2008


1

The ESP accepted this offer on April 4, 2008, when it was first communicated to her.


2

At Hearing, the ESP elected not to call any witnesses and instead relied on her oral argument. Therefore, the facts outlined in this section become the undisputed facts for purposes of deciding both Springfield’s Motion to Dismiss and Parent’s Motion for Summary Judgment. Additionally, for purposes of the Motion to Dismiss, I am assuming as true the facts addressed in the ESP’s request for hearing, pertinent to these motions, and draw all reasonable inferences in the ESP’s favor from those facts.


3

Holyoke Public Schools’ IEPs were forwarded to Parent in Spanish. (See PE-3)


4

The IEP that covers the period from December 2007- December 2008 increased services to Student, offering direct services outside the regular education classroom for English/ Language Arts, Mathematics, and reintroduced Speech and Language services through a partial inclusion program. (SE-2) When this IEP was developed Student was in foster care and an educational surrogate parent had been appointed for her.


5

Student transferred to the Chestnut Accelerated Middle School on September 17, 2007. (SE-2)


6

The record lacks any documentation to support the Team’s decision to discontinue speech and language services, but Parent later accepted the IEP with this omission.


7

801 CMR 1.01(7)(g)3.


8

“ By Motion/Request of a Party : Any party may file a motion or request to dismiss a case for failure: 1) to prosecute or proceed with the case; 2) to follow or comply with these rules or with any Hearing Officer order; 3) to state a claim upon which relief can be granted; or 4) to sustain its case after presentation of evidence. The Hearing Officer may allow a motion or request to dismiss with or without prejudice.” Rule XVII B of the Hearing Rules for Special Education Appeals .


9

Judge v. City of Lowell , 160 F.3d 67, 72 (1 st Cir. 1998) (quoting Conley v. Gibson , 355 U.S. 41, 45-46 (1957)).


10

G.D. v. Westmoreland School District , 930 F. 2d 942, 944 (1 st Cir. 1991).


11

34 CFR §300.503 Prior notice by the public agency; content of notice .
(a) Notice . Written notice that meets the requirements of paragraph (b) of this section must be given to the parents of a child with a disability a reasonable time before the public agency–

(1) Proposes to initiate or change the identification, evaluation, or educational placement of the child or the provision of FAPE to the child; or

(2) Refuses to initiate or change the identification, evaluation, or educational placement of the child or the provision of FAPE to the child.

(b) Content of notice . The notice required under paragraph (a) of this section must include–

(1) A description of the action proposed or refused by the agency;

(2) An explanation of why the agency proposes or refuses to take the action;

(3) A description of each evaluation procedure, assessment, record, or report the agency used as a basis for the proposed or refused action;

(4) A statement that the parents of a child with a disability have protection under the procedural safeguards of this part and, if this notice is not an initial referral for evaluation, the means by which a copy of a description of the procedural safeguards can be obtained;

(5) Sources for parents to contact to obtain assistance in understanding the provisions of this part;

(6) A description of other options that the IEP Team considered and the reasons why those options were rejected; and

(7) A description of other factors that are relevant to the agency’s proposal or refusal.

(c) Notice in understandable language . (1) The notice required under paragraph (a) of this section must be–

(i) Written in language understandable to the general public; and

(ii) Provided in the native language of the parent or other mode of communication used by the parent, unless it is clearly not feasible to do so.

(2) If the native language or other mode of communication of the parent is not a written language, the public agency must take steps to ensure–

(i) That the notice is translated orally or by other means to the parent in his or her native language or other mode of communication;

(ii) That the parent understands the content of the notice; and

(iii) That there is written evidence that the requirements in paragraphs (c)(2)(i) and (ii) of this section have been met.

(Authority: 20 U.S.C. 1415(b)(3) and (4), 1415(c)(1), 1414(b)(1))


12

Communications with parents and students . Each district shall ensure that all communications and meetings with parents and student pursuant to 603 CMR 28.00 meet the following standards:

1. Communications shall be in simple and commonly understood words.

2. Communications shall be in both English and the primary language of the home, if such primary language is other than English. Any interpreter used to implement this provision shall be fluent in the primary language of the home.

3. Where parents or the student are unable to read in any language or are blind or deaf, communications shall be made orally in English or with the use of a foreign language interpreter, in Braille, in sign language, via TDD, or in writing, whichever is appropriate. 603 CMR 28:07(8).


13

Ms. Falcon stated that in her opinion the translation/interpretation and explanation of the program and services offered Student in the 2006-2007 IEP she provided for Parent offered Parent more information than Parent would have been able to obtain had she read the translated IEP herself, especially where Ms. Falcon did not know what Parent’s reading ability was. Ms Falcon further explained that during the meeting of March 19, 2007, Parent was able to ask questions when she did not understand something. (Testimony of Ms. Falcon)


14

Shawsheen Valley Regional Vocational Technical School v. Commonwealth of Massachusetts Bureau of Special Education Appeals , 367 F. Supp. 2d 44 (D. Mass 2005).


15

Massachusetts Special Education Regulation at 28.07(8) regarding communication with parents and students require that

Each district shall ensure that all communications and meetings with parents and students pursuant to 603 CMR 28.00 meet the following standards:

1. Communications shall be in simple and commonly understood words.

2. Communications shall be in both English and the primary language of the home, if such primary language is other than English. Any interpreter used to implement this provision shall be fluent in the primary language of the home.

3. Where the parents or the student are unable to read in any language or are blind or deaf, communication shall be made orally in English or with the use of a foreign language interpreter in Braille, in sign language, via TDD, or in writing, whichever is appropriate. 603 CMR 28.07(8).


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