COMMONWEALTH OF MASSACHUSETTS
DIVISION OF ADMINISTRATIVE LAW APPEALS
BUREAU OF SPECIAL EDUCATION APPEALS
In re: Student v. Abby Kelley Foster Charter Public School
BSEA # 24-03626
RULING ON SCHOOL DISTRICT’S SUFFICIENCY CHALLENGE
This matter comes before the Hearing Officer on the October 30, 2023 School District’s Sufficiency Challenge (Sufficiency Challenge) in which Abby Kelley Foster Charter Public School (“AK” or the District) objected to the sufficiency of the request for hearing, The District asserts, in part, that where Parent in the above-captioned hearing request seeks an order from the BSEA that”[Student] is entitled to an IEE in the form of a transitional assessment,” AK already approved the Parent’s request for a transition assessment, thus rendering the Student entitled to a publicly-funded IEE. The District further contends that “no further relief of the BSEA is required or warranted.”[1]
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 Sufficiency Challenge is DENIED.
RELEVANT PROCEDURAL HISTORY:
Student is an 11th grade student at AK and receives support through an IEP dated March 2023 to March 2024. Student has a history of significant trauma. In January 2023, Student participated in a three year re-evaluation, a part of which the school adjustment counselor performed a transition assessment utilizing the Learning Styles checklist, which is a self-assessment. Parent believed that the transition assessment “lacked major facets of [Student’s] transitional skills and presentation, such as the fact that she is currently employed in the community, but often engages in confrontation with adults and peers, and has notable skill deficits in pragmatic language.”
On October 12, 2023, Parent filed a Hearing Request asserting that Student “is entitled to an IEE in the form of a transitional assessment … at market rate, rather than at the district limit of $258.66.” According to Parent, she “inquired several times as to why the transitional assessment is unilaterally capped at $258.66 by the district as there appears to be no substantiating regulation for such a low rate.” Although “the district approved the IEE funding (of which Parent feels is unjustifiably limited) on September 21, 2023; since then, Parent has been unable to search for a provider who can assess [Student’s] transitional abilities for $258.66 because she has no information regarding the justification of that rate or any ideas as to whom would conduct an evaluation for this limited fee.”
Parent argues, in part, that “the right of Parent to obtain an IEE is not contested by AK. The amount of time and money allotted to Parent for the evaluation is at issue. The rate setting system regarding IEEs does not apply to transitional assessments.” Moreover,
“the regulations, even if applicable do not have a three hour limit [as set by the District. Therefore, the BSEA should conclude that rather than filing at the BSEA to challenge the request for a transitional IEE, the district simply issued an impossible rate [i.e. education assessment rate] (and time limit) from which to obtain an IEE, which had the same effect as a denial. Parent does not have to prove that unique circumstances exist in this matter because there are no rate-setting fees for transitional assessment.”
Parent asks for the following relief:
- Find that AK denied the request for an IEE in the form of a transitional assessment when it unreasonably limited the evaluation to $258.66 by creating a three-hour time limit.
- Order the AK to fund an independent education evaluation in the form of a transitional assessment by a trained psychologist with expertise in the impacts of RAD, ADHD, ASD, who can observe AK in all settings with no time limit imposed upon the evaluator. The evaluator should evaluate the impact of [Student’s] emotional dysregulation on her ability to maintain employment and pursue her goals after discharge from special education. The psychologist shall also conduct updated cognitive testing to inform the team of [Student’s] current intellectual and adaptive functioning in light of [Student’s] documented lack of progress in math.”
In its October 30, 2023 Sufficiency Challenge, the District argues that
“[n]o legal authority exists upon which the Hearing Officer may base an order for a ‘’market rate’ IEE. To date, including within the four corners of the Parent’s hearing request, the Parent has not requested a specific rate, number of hours, or total amount exceeding [AK]’s proffered rate. Parent also acknowledges that she has not yet sought an IEE at state rates. No legal authority exists upon which the Hearing Officer may base an order for an IEE consisting of unlimited hours or public funds.”[2]
LEGAL STANDARD:
Pursuant to Rule I (E) of the BSEA Hearing Rules, “[i]f the hearing request does not contain the elements set out in Rule 1B, [the non-moving] party may file a written challenge to the sufficiency of the hearing request with the Hearing Officer and the other party(ies) within fifteen (15) calendar days of receipt of the hearing request.”
Rule I (B) of the Hearing Rules sets forth the required content of a hearing request as follows:
- Name and address of student;
- Name, address, and telephone number of:
- Person requesting hearing;
- Parent(s);
- Legal Guardian, if any;
- Individual given court-appointed educational decision-making authority, if any;
- Duly appointed educational surrogate parent, if any; and
- Individual with whom the child lives and who is acting in the place of the parent;
- Relationship to student of person requesting hearing;
- Name of programmatically and fiscally responsible school district(s) and/or name of state educational agency or other state agency(ies);
- Name of the school the child is attending;
- In the case of a homeless child or youth within the meaning of the McKinney-Vento Homeless Assistance Act (42 U.S.C. Sec. 11434a(2)), available contact information for the child and the name of the school the child is attending;
- If applicable, the name, address, phone number, and fax number of the attorney or advocate representing the party who is requesting a hearing;
- The nature of the disagreement, including facts relating to such disagreement;
- A proposed resolution of the disagreement to the extent known and available to the party at the time.
APPLICATION OF LEGAL STANDARD:
I note at the outset that the deadline to submit the sufficiency challenge in this matter was October 27, 2023.[3] As such, the Sufficiency Challenge is DENIED on the grounds that it is untimely.
I further note that even had the Sufficiency Challenge been timely, I would find it necessary to deny it. The Hearing Request filed by Parent in this matter is sufficient, as it states the nature of the disagreement, including facts relating to such disagreement, and a proposed resolution of the disagreement “to the extent known and available to [Parent] at the time.”[4] Specifically, Parent articulates in her Request for Hearing that she does not have additional information regarding the rate and hours necessary for a transition assessment as she “has been unable to search for a provider who can assess [Student’s] transitional abilities for $258.66 because she has no information regarding the justification of that rate or any ideas as to whom would conduct an evaluation for this limited fee.” As such, Parent has provided the District with sufficient “fair notice of what [Parent’s] claim is and the grounds upon which it rests.”[5]
ORDER:
The District’s Sufficiency Challenge is DENIED.
By the Hearing Officer:
/s/ Alina Kantor Nir
Alina Kantor Nir
Dated: October 31, 2023
[1] The District has not filed Motion to Dismiss. As such, I do not address whether “relief of the BSEA is required or warranted.”
[2] I have amended the District’s argument into paragraph form from the original pleading.
[3] See BSEA Hearing Rule 1(E). This was also the date noted on the Notice of Hearing issued by the BSEA on October 13, 2023.
[4] BSEA Hearing Rule I(B) (9).
[5] Leatherman v. Tarrant County N ICU, 507 U.S. 163, 168 (1993).