COMMONWEALTH OF MASSACHUSETTS
BUREAU OF SPECIAL EDUCATION APPEALS
BSEA #00-2574
RE: CARVER PUBLIC SCHOOLS
RULING ON CARVER’S MOTION TO DISMISS
INTRODUCTION
On May 13, 2000, the Bureau of Special Education Appeals (hereafter BSEA) received a request for a hearing from the Student and her Parents seeking compensatory education in the form of two years of college tuition. They allege that that the Carver Public School (Carver) has denied her a free and appropriate public education (FAPE) by:
(1) failing to diagnose her learning disability until December 1997 and
(2) failing to implement the one hour per day of special education assistance accepted in the IEPs running from September 1998-June 1999.
Student/Parents also claim that Student has failed to meet the requirements of graduation, that she rejected her diploma in June 1999 and therefore Carver should not have issued her a diploma on November 30, 1999.
Carver has filed a motion to dismiss on the grounds that Student has received a valid high school diploma and is therefore not eligible for an award of prospective services. Carver also asserts that Student is not entitled to compensatory services, but that even if she were entitled, equitable considerations would preclude such an award.
A prehearing conference occurred before Hearing Officer Erlichman. Attempts to resolve the matter were unsuccessful. A hearing on the motion to dismiss was held before this Hearing Officer. The Parties again elected to try to resolve the matter. Those negotiations have broken down and Carver has refiled and supplemented its motion to dismiss. The Student has also refiled and supplemented its opposition.
FACTS
The relevant facts taken in the light most favorable to the Petitioner are as follows:
1. Student is a twenty year old women (d.o.b. 2-20-81) diagnosed with learning disabilities and possible ADHD that results in a deficits in higher level linguistic processing skills necessary for comprehension, below-average mathematical reasoning and visual motor coordination and mild difficulties in sustained attention (School Exhibit D, Parent’s Exhibit A). At all relevant times Student has resided in Carver.
2. When Student was in first grade, she was placed on an IEP to address speech and language issues ( see Affidavit of Mother, School Brief, Footnote 2). During the spring of 1990, when Student was age nine and in third grade, Carver evaluated her and determined that she was not eligible for special education services. Parents received notice of their right to reject the determination and to request a hearing. Parents accepted the determination in full on March 26, 1990 and signed a form on June 3, 1991 agreeing to the dismissal from Special Needs. (School Exhibits A, B, Affidavit of Mother).
3. Student began showing weaknesses in math in 3 rd grade. Parents gave Student private tutoring in Grades three and four and tutoring every other week in 5 th , 6 th and 7 th grade (School Exhibit H).
4. Student began having academic problems in high school (Affidavit of Mother). During her freshman year (SY 95-96), Student had a D+ in physical science and a D in Algebra I. During her sophomore year (SY 96-97) Student received a D- in English Literature and D+’s in U.S. History and Interactive Math. During her junior year (SY 97-98) Student flunked Studio Art and received D-‘s in American Literature, 20 th Century History, Psychology and Interactive Math II. During senior year (98-99) Student received a failing grade in International relations (School Exhibit O). Student was also on the Varsity Soccer Team and Student Council in 9 th , 10 th and 11 th grade, the 9 th grade Basketball Team, the Multicultural Club during freshman and sophomore year and cheerleading during basketball season of senior year; Id.
5. In 9 th grade, Parents resumed private tutoring in math (School Exhibit H). In the middle of Student’s sophomore year, Mother contacted the Carver High School and inquired as to how to get Student tested for Attention Deficit Hyperactivity Disorder. Carver advised Mother to obtain testing from Student’s primary care physician (Affidavit of Mother).
6. Parents had Student tested at Braintree Hospital during February, March and April 1997. The evaluators found Student to have “above average intelligence with strengths in sequencing and rote memory, speed for numerical calculations, analysis and synthesis of numerical relations, associative learning, the ability to distinguish essential from nonessential details, verbal fluency, confrontation naming, basic visuospatial constructional skills, sustained attention and motor speed, visual and verbal memory and procedural learning”. The evaluators also found that Student did not have difficulty with phonological processing or reading or spelling but did have difficulty with higher level linguistic processing necessary for comprehension. Student tested in the average to above average range in math but had difficulty solving word problems. She also showed weaknesses in pragmatic reasoning and sustained attention for visual tasks and was at risk for low self-esteem. The Speech and Language Pathologist found a mild to moderate expressive language delay characterized by difficulties in formulation and organization. The evaluators ruled out ADHD but suggested the possibility of a language based learning disability with mild difficulties in sustained attention. The evaluators recommended pull-out math, school counseling and speech and language therapy 1-2 times weekly (Parents Exhibits A, B).
7. Parents brought these test results to Carver’s attention in June 1997 and the TEAM was convened at that time. Carver told Parent that they wanted to do more testing. The Parent agreed to have the READS Collaborative do the testing. READS did educational testing on October 2, 1997 (Parent’s Exhibit C, School Exhibit D). The READS evaluator agreed that Student did not meet the diagnostic criteria for ADHD; however, testing revealed a significant discrepancy between Student’s mathematics reasoning and her overall aptitude, suggesting learning deficits in math. The evaluator recommended curricular modifications to help Student develop visual-motor coordination and math reasoning skills, as well as possible school counseling and drug and alcohol treatment to deal with regular substance abuse; Id .
8. The TEAM reconvened on November 13, 1997 and concluded that Student had no special needs. The TEAM reconvened on December 8, 1997 and at that time found Student to be eligible for special education services and developed a 502.1 IEP that provided eleven modifications and consultation services (School Exhibit E). The specific goal set forth in the IEP was for Student to “successfully complete regular education courses with special education consultation and modification.” Parents participated in the meeting to develop the IEP ( see Affidavit Mother, School Brief). On December 10, 1997, Parents acknowledged receiving notice of their right to reject the IEP and request a hearing. She accepted the IEP with the attached input letter. In this attached letter Parent requested that Student would receive “classroom seating in the least distractable [sic] location”; that Student would receive “homework detention when homework is not passed in, in all classes”; “detention for tardiness in all classes”; that a “bad day does not enable [Student] to mentally exclude herself from classes”; that “class absences would be reported to an administrator to prevent sporatic [sic] absences from class to class”; that Student be allowed to participate in MEAP testing in 1998 and that Student have her spelling corrected but not be penalized for poor spelling; Id.
9. On May 13, 1998 Carver held a Team meeting and developed a 502.2 prototype (Grade 12 IEP) for Student’s senior year (SY98-99). Like the IEP for Student’s junior year, the Grade 12 IEP stated that Student would graduate in 1999 and provided a transition plan “to explore colleges on her own via guidance.” As with the prior IEP, this IEPs stated goal was for Student to “complete her regular education courses with special education consultation and modification.” The Grade 12 IEP added fifty-three (53) minutes per day of scheduled attendance in the Student Assistant Center (SAC), a structured study period where special education staff are available to help special needs students complete their regular education coursework (School Exhibit C). The IEP also included a goal for utilization of the SAC (School Exhibit F). Parents received notice of their rights to due process; Parents accepted the IEP on May 22, 1998. (School Exhibit F, Mother’s Affidavit).
10. On or about May 1998, Student began taking medication for ADD. Subsequently, Student showed significant improvement in her mood as well as significant improvement on focusing, staying on tasks and completing assignments (School Exhibit H).
11. In June 1998, Parents wrote to Carver informing them that they were pleased with Student’s current program, but asserted an entitlement to compensatory services due to poor experiences in math during earlier years and Carver’s delay in identifying a learning disability (School Exhibit G).
12. During the early Fall of Student’s senior year (SY1998-1999) Student told Mother that she used the SAC to complete her homework and take untimed tests but was not taught any study skills (Affidavit Mother, Student). Mother informally talked to the SAC teacher about implementing learning techniques and using computers (Affidavit Mother). The teacher talked to Student about Mother’s concerns at the start of the second semester (Mother’s Affidavit). In February 1999, Student stopped going to the SAC and began going to art class during this time period.
13. In a letter to Carver TEAM members dated January 5, 1999, Parents again expressed concern about Student’s lack of basic Math Skills. At that time they requested that Carver administer an achievement test to Student in math (School Exhibit H).
14. Carver sent Parent a consent form for this testing in June 18, 1999. Carver administered the Woodcock Johnson and Student scored in the average range for broad and basic math skills, math reasoning and calculations and applied problems and below average in quantitative concepts (Parents Exhibit F). On the Test of Mathematical Abilities (TOMA-2) Student scored in the average range in the general information and memory subtests and the poor range in vocabulary and computation; Id. The Mother met with Carver regarding the scores. Carver did not offer for Student to return to Carver to take courses to improve her math scores (Affidavit Mother).
15. On February 2, 1999, Student and her SAC teacher got into an argument because the teacher refused to let Student go to the Art room instead of the SAC until her grades went up. Student got very upset and went to the guidance office and Mother was called (Parent’s Exhibit E). Even though Student did not want to go back to the SAC Mother wanted her to remain. Mother was told that the TEAM would reconvene; Id. .
16. Student turned eighteen on February 10, 1999. On February 11, 1999 the TEAM reconvened. Student and Mother attended and participated in the meeting (Affidavits, Mother, Student). Student told the TEAM that she was not making any progress in SAC and was getting no direction (Affidavit Mother, see also Student). She also told Carver that she was “no longer in need of direct services on a daily basis.” She asked Carver to reduce her services in February 1999. Parent objected to this reduction but was told by Carver that since Student had turned eighteen Parent did not have authority to speak on her behalf (Affidavit Mother). At Student’s request, Carver provided an IEP amendment to permit Student to access SAC “as needed” (School Exhibit I). The IEP was sent to Mother and accepted by her.
17. On or about April 8, 1999, Mother and Father were called to a meeting at the Carver Public Schools and were advised that Student would probably not be graduating because of poor performance in International Relations (Affidavit Mother, Parent’s Exhibit F).
18. On May 17, 1999, the Assistant Principal notified Student that, due to her failure to attend class, she would not get credit for her course in “International Relations.” because she had eleven absences which was two over the maximum limit. As a result, on May 28, 1999, the Principal notified Student that she would not graduate as anticipated in June 1999 (Exhibit J)
19. On June 2, 1999, four days later, Carver received a letter from Student stating that on the “advice of the Federation for Children with Special Needs and my personal advocate, I have decided not to exept [sic] my diploma and to exercise my right to due process.” (Exhibit K)
20. The Team met on June 18, 1999. Despite Student’s assertion that she had decided not to accept her diploma, Student requested no continuation of services and proposed no new goals for the Team’s consideration. Thus, the Team considered options for Student to meet her goal as set forth in her accepted IEP, “to complete her regular education courses.” Team members specified that Student was missing one course needed for graduation, i.e., a social studies course. While they discussed options for completing the course, including attending summer school or evening school in a nearby district, the TEAM also offered to develop an IEP providing for Student’s return to Carver High School in the fall. Parent stated that Student planned to go to college to study ecology, and was on the wait list for fall of 1999 for the College.(School Exhibits L and C)
21. In July 1999, Parents filed a complaint with the Department of Education’s Division of Program Quality Assurance (PQA)1 alleging that Carver had “failed to adequately implement [Student’s] IEP”. PQA conducted an investigation and issued a letter finding no merit to the complaint. (Exhibits M and N). Parents do not feel that PQA properly investigated their complaint (Mother’s Affidavit).
22. Student did not accept the Team’s offer to return to Carver High School in September 1999. Instead, she chose to complete the one course required for her graduation in summer school, receiving a grade of B+. (Exhibit O) Although Student earned her diploma in August 1999, Carver waited for several months to send it to her. By November 30, 1999, Carver had still received no proposal from Student for new goals, no request for continuing services, and no request for a due process hearing. The Principal mailed Student’s diploma to her on that date. (Exhibit P and Q).
23. On December 8, 1999, Student rejected the IEP amendment dated 2/99-6/99 that called for the reduction of services in the SAC (School Exhibit S). On December 15, 1999 Student informed Carver that she would attend the College in January 2000 and would seek reimbursement from the Carver Public Schools (School Exhibit T)
RULING
After review of the documents and the case law pertaining to this issue and taking all pleadings in the light most favorable to the Petitioner, as required in a motion to dismiss2, Carver’s motion to dismiss is GRANTED. My reasoning follows.
Rule 16B of the Hearing Rules for Special Education Appeals provides, in pertinent part, that [a]ny party may file a Motion or Request to dismiss a case for failure:…3) to state a claim upon which relief can be granted…. In considering whether to dismiss a BSEA request for failure to state a claim, the Hearing Officer decides whether the facts alleged by the Party requesting the hearing, if proved, would support a claim under federal or state special education law. In deciding whether to grant a motion to dismiss, the Petitioners facts are deemed to be true and taken in the light most favorable to that Party.
The Petitioners claim that Student is entitled to compensatory services and those compensatory services should be two years of college tuition. Compensatory education is available as a remedy to students who have graduated or who are beyond the age of special education eligibility if that student can show that an IDEA violation occurred during their period of entitlement; see Phil v Mass. Department of Education , 9 F. 3rd 184 (1st Cir. 1993). If a hearing officer (or a Court) finds that a school system violated a student’s rights by awarding a diploma, the available remedy would be rescission of the diploma and/or the right to receive educational services for a period of time to make up for the services lost because of the violation. If the parents have provided services on their own, the remedy is reimbursement for the cost of those services.
The valid awarding of a regular high school diploma terminates an individual’s eligibility for special education services and thus extinguishes any claim under state and federal law for an award of services on a prospective basis; 34 CFR 300.122(3)(I). Moreover, local school and state officials, not courts, hearing officers, or TEAMs, set the academic standards for award of a regular high school diploma. Stock v. Massachusetts Hospital School, 392 Mass. 205 (1984). The Parties do not dispute that Student has met the standards for a regular high school diploma in Carver; nor does the Student or Parents argue otherwise in their hearing request. The instant case thus is clearly distinguishable from a recent BSEA decision in which a student’s diploma was found invalid because the district had unilaterally waived a graduation requirement in order to issue it. ( Brockton Public Schools , BSEA #99-2226 (Sherwood 2000)). In fact, Carver refused to graduate Student until she had met the regular education standards and offered Student the option of receiving services during the following school year or completing the course during the summer. Student chose to complete the course in summer school; (School Exhibits J, O, and Q).
A Hearing Officer may declare a regular diploma invalid where the district failed to provide advance notice or a transition plan; however, neither circumstance applies in this case. The undisputed evidence establishes that Carver included notice of Student’s 1999 graduation and a transition plan in each of her IEPs and that Parents accepted both of these provisions (School Exhibits E,F,L).
The Student/Parents maintain that Student failed to meet her IEP goals and objectives and as such, she should be awarded college tuition as compensatory education. Failure to meet goals and objectives are not grounds for invalidating a diploma; see e.g., Hamilton County Schools , 23 IDELR 772 (SEA TN 1996) (citing Hendrick Hudson District Board of Education v. Rowley , 548 U.S. 176 (1982), in which the administrative law judge refused to declare a diploma invalid where the student had completed the requirements for a diploma at his school, but had clearly failed to meet the goals regarding social/emotional, vocational, and daily living skills). Even if the Hearing Officer were permitted to consider Student’s completion of her IEP goals, the undisputed facts show that Student has done so, as the Student’s accepted IEPs call for modifications and accommodations in the regular education classroom so that she can achieve completion of her regular education courses (School Exhibits E and F). Student did fail to complete that goal by her graduation date of June 1999; however, the Team met on June 19, 1999, specified what she needed to do to meet the goal, and provided her with options for doing so. Student elected to attend summer school to complete her graduation requirements, where she earned a B+ without any special education assistance (School Exhibit O).
Parents/Student maintain that even if the diploma was validly issued, the IEPs were inadequate because Student did not achieve grades that would enable her to get into a good college. The IEPs designating special education accommodations and consultation in the regular education classroom and assistance in the SAC were accepted. The IEP that reduced SAC services to an “as needed basis” was not rejected until December 1999, six months after the IEP had expired. In this case the Parents and Student participated in the development of the IEPs, received notice of their options for rejection and due process and chose to accept them. Once an accepted IEP has expired, Hearing Officers are precluded from revisiting implemented IEPs; s ee Christopher A. v. Stow Public Schools , BSEA #90-1132 (Oliver 1990), aff’d. at Amann v. Stow School System , 19 IDELR 618 (1 st Cir. 1992); Gaylord Community School , 32 IDELR 21 (SEA Michigan 1999). To hold otherwise would: “overlook[] the IDEA’s goal of addressing placement decisions at the time they are made and the relevant procedural safeguards to facilitate that goal, Manchester School District v Christopher B. , 19 IDELR 143, 147 (DNH 1992). The Manchester court went on to state that an effort to hold the school liable for the poor results of a placement must fail when the parents had participated in planning and never initiated a hearing. The court deemed such an effort was “grounded in educational malpractice, or strict liability, rather than the IDEA . . .and is at odds with the Act.”
In the instant case, the undisputed evidence shows that Parents and, later, Student participated in the Team meetings convened to develop Student’s IEPs, that they received notice of their rights to reject them and request a hearing, and that they chose to accept them (Exhibits E and F). Furthermore, at no time during the term of the IEPs did Student or her parents reject them. Even though Student did in June 1999, indicate that she was rejecting her diploma on the advice of the Federation for Children with Special Needs and her personal advocate, she did not choose to reject her then current IEP at any time before it expired or even before her diploma was issued (School Exhibit K). Moreover, while Student notified Carver that she had “decided” to reject her diploma and seek “due process,” her actions demonstrated otherwise. She never proposed any additional goals, never proposed any changes to her transition plan, never requested continuing services, never returned to the high school, and never requested “due process.” To the contrary, even though she was given options to receive additional services at Carver High School prior to graduation, she chose to complete the course required to complete her graduation requirements during the summer of 1999. For the hearing officer to now, more than one year after Student’s graduation, retroactively consider the adequacy of the services and goals that Complainants’ agreed to and that Carver relied on in implementing transition and graduation, would ignore the principles expressed in Gaylord , Rowley , Manchester , and Amman as described above. Such a ruling would be grounded in “strict liability” not the IDEA, and would be “at odds with the Act” and also not a claim properly before the BSEA.
B. EQUITABLE CONSIDERATIONS WARRANT DISMISSAL OF PETITIONER’S CLAIM FOR COMPENSATORY RELIEF
Hearing Officers do have the authority to award compensatory services to remedy deprivations that occurred while an individual was eligible for services under the IDEA. Such claims, however, may be defeated by equitable considerations; See Marshfield Public Schools , BSEA 95-2757 (Sherwood 1997) (dismissing all claims on the basis of laches where even serious violations of the IDEA alleged). For example, as stated in Brockton , BSEA #99-2226 (Sherwood 2000), a decision such as Student’s not to access services offered by the district bars a claim for compensatory services. In the instant case, Student in February 1999 requested that Carver reduce her services, asserting that she “no longer needed direct services.” Even if at hearing testimony might show that Student wanted to reduce her services because she thought that they were inadequate, Student did not request a change in services. Even if Carver should have pursued a change in services despite Student’s request to the contrary, Student was offered, in June 1999, an opportunity to receive services at Carver High School during the next school year and declined the offer. Here, Student’s affirmative request to eliminate services in February 1999, coupled with her subsequent refusal of Carver’s June 1999 offer of services is sufficient to bar an award of compensatory relief.
C. STUDENT’S CLAIM FOR COMPENSATORY RELIEF BASED ON CARVER’S FAILURE TO EVALUATE SHOULD BE DISMISSED AS TIME-BARRED
In the alternative, Parents/Student allege that even if Student’s receipt of a valid regular high school diploma otherwise rendered her ineligible for compensatory services, Carver violated Student’s rights by failing to properly evaluate her, thus delaying diagnosis of her learning disability until December 1997. Petitioner’s claim for compensatory relief is based on allegations that Student has not received good math grades since third grade. Claims based on that time period are time-barred.
Neither the IDEA nor Massachusetts statutes prescribe a limitations period for compensatory education claims. Rather the Massachusetts Federal and State Courts have decided limitations matters on a case-by-case basis; see e.g., Amann v Stow , 991 F. 2d 929 (1 st Cir. 1993), Murphy v Timberlaine Regional School District , 22 F. 3d 1186 (1 st Cir. 1994). When considering the appropriate limitations period, Courts examine the competing policies of encouraging rapid resolution of placement disputes with the incentive to take the necessary time to resolve the matter through good faith cooperation and negotiation between the Parties: compare Amann, Timberlaine (supra). Statute of limitations exist in part so that a Party defending an action and a party responding to that defense is not prejudiced because witnesses are unavailable or can not respond due to the lapse of memory due to the passage of time. The BSEA addressed the issue of appropriate limitations periods for compensatory claims and adopted a three-year statute of limitation period; see Fall River Public Schools 5 MSER 183 (Crane). This is a reasonable time period. This Student is nineteen years old. Going back to the elementary years would prejudice Carver in defending this matter and the Parents/Student in responding to any defense Carver may present. As such, any claims that Carver failed to evaluate that may have existed prior to the three years from the filing of this matter (March 13, 2000) are DISMISSED.
The facts therefore will be reviewed from March 13, 1997 to determine if Student could be entitled to compensatory services. In March 1997, Student was a regular education sophomore at the Carver High School and had not been evaluated by Carver to determine if she would be eligible for special education services. During Student’s sophomore year she had two D’s and many C’s. Carver would have been required to make pre-referral efforts or conduct an evaluation if Student had been at risk of non-promotion at the end of a school year because she was failing two or more nonelective subjects; see 603 C.M.R. 28.310.1. Student did not meet this condition.
The facts show that Carver reconvened the TEAM in June 1997 when they received the private evaluation from Parents. At that time Carver requested permission to do its own evaluations to determine whether Student was eligible for special education services. The Parents agreed. The School District conducted the required assessments pursuant to then 766 regulation 28.302 and found Student ineligible for services in November 1997. It reversed its decision in December 1997 and offered programs that Parents accepted after receiving a copy of their rights. Services were reduced in February 1999 at the request and participation of Student. An IEP was developed and sent to the Parent but not the Student. This IEP should have been sent to the Student and as such constituted a procedural error on Carver’s part. In order to prevail; however, the Student must show not only that Carver committed the procedural violations but that those procedural violations resulted in a denial of a free appropriate public education to the Student. In this matter Student knew about the IEP because she had requested the reduction in services and participated in the meeting. If she was sent the IEP it would have been accepted and even though it was sent to Mother she accepted it because she knew that Student only wanted to access the SAC as needed. The Parent at that time requested that the one hour of daily special education support remain in effect.
Even if testimony showed that Student would be entitled to compensatory education services the services would be similar in time and scope to those that would have been provided during the applicable period of violation. In the case at bar, Student’s IEP, which was accepted by the Parents on December 12, 1997, provided for consultation and monitoring. Neither Party has presented any indication that there would be evidence to show that an IEP developed a few months, or even years, earlier would have provided more intensive services. To the contrary, the greatest level of services under any of the IEPs accepted by the Parents was fifty-three minutes per day in the Student Assistance Center, a structured study period. A denial of consultation, modifications, and one period of a structured study period cannot justify a placement in an out-of-state residential college for any period of time, let alone for the two years Student seeks. The individual’s educational status at the time the services are to be implemented must be considered when fashioning an award, such services should nevertheless approximate the level of those the student was improperly denied. In this matter, the services comparable in scope is one hour of daily tutoring; see Puffer v. Reynolds , 761 F. Supp. 838 (D.Mass. 1990) (Court order of one hour of daily tutoring in study skills as a compensatory service for a college student who had been inappropriately denied attendance in a study skills class prior to her high school graduation). The Parties admit that this tutoring has been offered by Carver for settlement purposes; see (Petitioner’s Supplemental Opposition, School’s Supplemental Motion to Dismiss). Student does not want to accept this service. This matter is hereby DISMISSED.
By the Hearing Officer:
_________________
Joan D. Beron
Dated: July 9, 2001
1
Mothers’ affidavit asserts that it filed with the BSEA; however, the documents show that the Parents contacted PQA to investigate a complaint.
2
In a motion to dismiss the facts are taken in the light most favorable to the respondent and the facts are considered to be true. In a hearing situation, the matter will be decided by a preponderance standard. In order to prevail on her claim for compensatory services, the Student must show through testimony and/or documentary evidence that her allegations are more probably true than false.