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In re: Greater Commonwealth Virtual School BSEA # 24-11692C

COMMONWEALTH OF MASSACHUSETTS

DIVISION OF ADMINISTRATIVE LAW APPEALS

BUREAU OF SPECIAL EDUCATION APPEALS

In re: Greater Commonwealth Virtual School                                   

BSEA# 24-11692C

RULING ON GREATER COMMONWEALTH VIRTUAL SCHOOL’S MOTION FOR ORDER COMPELLING PARENT TO COOPERATE IN THE EVALUATION PROCESS

This matter comes before the Hearing Officer on the December 10, 2024 Greater Commonwealth Virtual School’s Motion For Order Compelling Parent To Cooperate In The Evaluation Process (Motion) in which the Greater Commonwealth Virtual School (Greater Commonwealth or the District) moved for an Order directing Parent to cease interference with and to cooperate in the reevaluation process of Student. The District also asked that the BSEA retain jurisdiction over this matter until Parent complies with the order.

Parent, who is pro se, did not respond to the Motion or to any of the BSEA’s communications.

This Ruling is issued pursuant to BSEA Hearing Rule XIV, which provides, in relevant part, that a “party contending that the Hearing Officer’s decision is not being implemented may file a motion requesting the BSEA to order compliance with the decision. … Upon a finding of non-compliance, the Hearing Officer may fashion appropriate relief ….”.

Neither party has requested a hearing on the Motion. Because neither testimony nor oral argument would advance the Hearing Officer’s understanding of the issues involved, this Ruling is issued without a hearing, pursuant to Bureau of Special Education Appeals Hearing Rule VII(D).

For the reasons set forth below, the District’s Motion is DENIED.

RELEVANT FACTS[1] AND PROCEDURAL HISTORY:

  1. Student is currently a ninth-grade student enrolled in the District.
  2. Greater Commonwealth is an all-remote school district.
  3. On June 20, 2024, the undersigned  issued a Decision (“The Decision”) (In Re: Greater Commonwealth Virtual School, BSEA # 2411692) inwhich I made factual and legal findings that Student had not been evaluated since he was in the second grade and concluded “that Student’s IEP goals and objectives, which expired over 5 years ago, are now irrelevant and that informal observations and classroom work are insufficient to assess individual skills.” In addition, I found that the Parent had repeatedly failed to consent to the testing and that:

“updated testing is necessary to determine whether Student continues to have a disability, whether Student continues to need special education and related services, and whether any additions or modifications to his special education and related services are needed to enable him to meet the measurable annual goals set out in his IEP and to participate, as appropriate, in the general education curriculum.”

As a result, the BSEA overrode the Parent’s lack of consent for a re-evaluation and provided the District with the right to Substituted Consent.

  1. Since the issuance of the Decision, the District has made repeated attempts to evaluate Student in the following areas: Occupational Therapy, Psychological, and Educational.
  2. Parent has obstructed each of the District’s attempts to evaluate Student through such means as engaging in a confrontation with the evaluators and refusing to allow the testing to proceed, remaining in the evaluation room with Student and offering commentary throughout testing, refusing to complete rating scales and forms, and refusing to provide Student for testing.
  3. According to the District, Parent’s cooperation is necessary to conduct an evaluation of Student because the evaluations occur in a remote/virtual setting. Unlike in brick-and-mortar education settings, the evaluators are not able to retrieve the Student from a classroom to conduct the evaluations during the school day. Rather, the student is at home.
  4. Parent has also refused to participate in the Team process.
  5. On December 3, 2024, the District received a “Request for an Individualized Education Evaluation” (IEE) from Parent requesting an IEE at public expense  to assess Student’s cognitive abilities, intellectual strengths and weaknesses; disputing Student’s “diagnosis of ADHD” and suggesting the test WAIS-5 (adults) be used; stating that Parent is in possession of findings from the neurology department at Boston Medical Center; and stating that Parent has concerns regarding Student’s learning including letter reversals to which he seeks testing ordinarily used in dyslexia screening. Subsequently, on December 10, 2024, the District filed with the BSEA (BSEA #2505857), contesting Parent’s IEE request.

LEGAL STANDARDS AND DISCUSSION:

A. Legal Standards:

1. Compliance with and Enforcement of a BSEA Decision.

Pursuant to the Individuals with Disabilities in Education Act (IDEA), a decision of the Bureau of Special Education Appeals (BSEA) is final, subject only to judicial review.[2] Thus, a final decision of the BSEA must be implemented immediately, is not subject to reconsideration,[3] but may be appealed to a court of competent jurisdiction.[4]

BSEA hearing officers, unlike courts, do not have authority to “enforce” decisions.[5] This general lack of enforcement authority does not preclude the BSEA from determining whether an order has been complied with. According to Massachusetts special education regulations and the BSEA Hearing Rules, a party contending that a BSEA decision is not being implemented has the option to file a motion with the BSEA setting out the areas of non-compliance.[6]  

Where a hearing officer finds that a school district failed to comply with a BSEA decision, hearing officers have generally fashioned equitable relief in the form of additional compensatory education and/or monetary reimbursement for privately secured services.[7] The hearing officer may also refer the matter to the Legal Office of the Commonwealth of Massachusetts Department of Elementary and Secondary Education or other office for appropriate enforcement action.[8]

Cases involving a parent’s failure to comply with a BSEA decision are limited. The District points to Hampden-Wilbraham Regional School District and James, BSEA #05-4878 (Oliver, 2005) in which Hearing Officer Ray Oliver concluded that the parents  had continually obstructed the evaluation process and had repeatedly attempted to control the assessment procedures. Hearing Officer Oliver found that ” … all requests by [School District] to evaluate James have been either rejected, not responded to, accepted then withdrawn, restricted, limited or conditioned by Parents.”  As such, Hearing Officer Oliver issued a ruling granting substituted consent and ordered Parent “not [to] interfere with the assessment and [to] fully cooperate with all assessment procedures.” However,  in a recent matter, Hearing Officer Sara Berman examined the hearing officer’s authority in compliance matters and concluded that she had no authority to order a Parent to cooperate with evaluations.[9] She concluded that, although “[a]t first glance,” Rule XIV of the Hearing Rules, which tracks the language of the applicable state regulation, 603 CMR 28.08(6)(b), 

“would appear to allow a hearing officer to order not only school districts or state agencies to comply with BSEA decisions, but also to order such compliance from parents (including guardians and Special Education Surrogate Parents) and/or adult students[, s]uch an interpretation of the Rule, however, would be contrary to federal and state statutory and regulatory provisions governing both the authority of the BSEA, and the “stay put” rights of students who are the subject of hearing decisions.”[10]

Hearing Officer Berman further explained that 34 CFR §300.513(a)(1)-(2), which 

“outlines the responsibility of the hearing officer, namely, to determine ‘on substantive grounds whether a child has received FAPE’ or, under limited circumstances, whether a child did not receive a FAPE due to ‘procedural inadequacies’, …explicitly allows hearing officers to order school districts to comply with the procedures mandated by the provision, stating that ‘[n]othing in paragraph (a) of this section shall be construed to preclude a hearing officer from ordering an LEA to comply with procedural requirements under §§300.500 through 300.536.’ (emphasis supplied) Nowhere, however, does the regulation authorize hearing officers to issue orders directing parents or guardians to take, or refrain from taking, any action in relation to the decision, or to ‘enforce’ decisions with respect to any party….

… As with the Federal law, nothing in the applicable state regulations [603 CMR 28.08(5)(c) and 603 CMR 28.08(6)(b)] authorize hearing officers to issue orders directing parents or guardians to ‘comply’ with decisions relative to a child’s services or placement.”[11]

Notwithstanding the above, Hearing Officers may make findings and orders with respect to parental failure to comply with a BSEA Decision. In In Re: Hamilton-Wenham Public Schools, BSEA # 04-4201, Hearing Officer Rosa Figueroa concluded that where, because of the parent’s or student’s actions, a school district was unable to comply with a BSEA decision that had ordered the school district to place a seventeen-year old student in a private, residential program, the school district was found compliant with such decision as the district had attempted to make FAPE “available” to the student who refused to attend. Hearing Officer Figueroa reasoned that the IDEA only requires a district to make FAPE “available” to eligible students, it does not require a district to “motivate” a student to avail himself of the education services and placement offered, especially when the student is not compelled by state law to attend school, and his parents fail to require him to do so. [12] Therefore, Hearing Officer Figueroa concluded that the district had met its legal obligation. [13]

Most courts, even when noting an administrative law judge’s order that a parent cooperate with the evaluation process, have not commented on the authority of the administrative law judge (ALJ) to do so. J.S. v. Westerly Sch. Dist., 910 F.3d 4 (1st Cir. 2018), for instance, is a case relating to “prevailing party” status. Initially, the matter involved a case where 

“[r]ather than consent to the school’s proposed evaluations, the parents filed a due process complaint with the Rhode Island Department of Education in February 2016, alleging that Westerly failed to identify M.S. as a child with a disability who was entitled to special educational services. In April 2016, the administrative hearing officer assigned to the case relied on the [IDEA] regulations [ …] to conclude that the district had a right to conduct its own evaluations before making an eligibility determination. 

The hearing officer consequently ordered the parents to ‘execute all releases necessary for school department to conduct appropriate evaluations of M.S.’ The parents did not provide consent, and in August 2016, the hearing officer dismissed the due process complaint based on the parents’ failure to comply with its order. The parents appealed to the District Court of Rhode Island.”[14]

Following a March 17,  2017 hearing on cross motions for summary judgment, the District Court directed the school district to make an eligibility determination without any additional orders relative to the family.[15] Notably, the  Court did not force the family to make the child available for assessment.

B. Application of Legal Standards:

Applying the foregoing analysis to the facts in the instant case, I conclude that I have no authority to force any action on the part of Parent.[16] Moreover, neither the pertinent statutes and regulations nor Rule XIV authorizes me to order or direct Parent to take any actions with respect to the reevaluation. 

That said, the District is not obligated to ensure Student’s participation in the reevaluation, either; rather it simply needs to make the reevaluations “available” to Student.[17] Therefore, I find that if Parent chooses not to submit Student for the reevaluation, the District shall be deemed to have satisfied its obligation to comply with the Decision issued on June 20, 2024 in BSEA Matter No. 2411692.   

ORDER:

The District’s Motion is hereby DENIED.

So Ordered,

/s/ Alina Kantor Nir

Alina Kantor Nir, Hearing Officer

Date:  December 26, 2024


[1] The facts in this section are drawn from the parties’ pleadings and are subject to revision in further proceedings, if appropriate.

[2] See 20 U.S.C. s. 1415(i)(1)(B).

[3]  According to Black’s Law Dictionary, the adjective “immediate” means occurring without delay, instant. Courts interpret the term immediately  to mean “as soon as is reasonably practicable under the circumstances” rather than literally instantaneous.  “It is impossible to lay down any hard and fast rule as to what is the meaning of the word ‘immediately’ in all cases. The words ‘forthwith’ and ‘immediately ’ have the same meaning. They are stronger than the expression ‘within a reasonable time.’ and imply prompt, vigorous action, without any delay, and whether there has been such action is a question of fact, having regard to the circumstances of the particular case.” Cockburn, C. J., in Reg. v. Justices of Berkshire, 4 Q. B. Div. 471

[4] See 603 CMR 28.08(6).

[5] Joseph v. Boston Public Schools, BSEA # 06-3836 (Crane 2006); see A.R. v. New York City Department of Education, 407 F.3d 65, n.13 (2nd Cir. 2005) (although the terms of a special education Hearing Officer’s decision are enforceable by a court, “[Hearing Officers], as is common in administrative procedures, have no enforcement mechanism of their own”); Longmeadow Public Schools, BSEA # 08-0673 (Crane, 2010) (“As is typical of administrative due process agencies, the BSEA generally lacks enforcement authority”).

[6] See 603 CMR 28.08(6).

[7] See In Re: Chicopee Public Schools and Nelida, BSEA # 04-0093 (Byrne, 2004); In Re: Dracut Public Schools, BSEA # 08-5330c (Crane, 2009).

[8] 603 CMR 28.08(6)(b); BSEA Hearing Rules, Rule XIV.

[9] Ashburnham-Westminster R.S.D. & Student (Ruling on District’s Motion to Order Compliance), BSEA No. 2303703 (Berman, 2023). 

[10] Id.

[11] Id. (also noting that 

“[h]earing officers must and do have authority to issue orders to both parents and school districts regarding the procedural aspects of a hearing; e.g., to meet filing deadlines, conduct themselves with decorum during the hearing, and the like. Such authority is necessary to enable hearing officers to perform their responsibility to conduct fair and impartial hearings, and the consequences for not obeying such orders relate only to the hearing itself such as dismissal of a hearing request or refusal to admit certain evidence into the record. This clearly differs from authority to order parents to comply with substantive decisions about services and/or placement”).

[12] In Re:  Hamilton-Wenham Public Schools, citing 20 U.S.C. §1412(a)(1)(A); Austin Indep. Sch. Dist. V. Robert M., 168 F. Supp. 2d 635 (W.D. Tex. 2001). 

[13]  Id.

[14] J.S. v. Westerly Sch. Dist., 910 F.3d 4, 8–9 (1st Cir. 2018).

[15] In Sch. Comm. of Town of Burlington, Mass. v. Dep’t of Educ. of Mass., 471 U.S. 359, 373–74 (1985), the Supreme Court, in discussing a different provision of IDEA, noted the Court’s  “doubt that [1415(e)(3)] would authorize a court to order parents to leave their child in a particular placement.” The finding suggests the limited authority of courts, and even more so of hearing officers, to instruct parents to subject their children to educational decisions with which parents disagree.

[16] See Ashburnham-Westminster R.S.D. & Student (Ruling on District’s Motion to Order Compliance), BSEA # 2303703 (Berman, 2023).

[17] In Re:  Hamilton-Wenham Public Schools, citing 20 U.S.C. §1412(a)(1)(A); Austin Indep. Sch. Dist. V. Robert M., 168 F. Supp. 2d 635 (W.D. Tex. 2001); see In re: Student with a Disability, 00236/09-10AS, 111 LRP 16554 (SEA PA, 2010) (“systemic process and legal determinations do not serve to force a parent to avail themselves of programs deemed appropriate”); cf. Pine Grove Area School District, 00979-0910AS, 111 LRP 9097 (SEA PA, 2010) (where “Parent suggest[ed] that the District evaluation did not adequately address Student’s difficulties and needs in the area of social and emotional functioning…, [but] Parent… had the opportunity to submit as much detailed information in writing as she wished, but chose not to return the parental input form, leaving the District to rely upon conversations in which Parents conveyed her concerns,” the hearing officer noted “the District’s inability to force Parent to return the written input form”).

Updated on December 27, 2024

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