In Re: Student v. Braintree Public Schools – BSEA # 23-03576

COMMONWEALTH OF MASSACHUSETTS

DIVISION OF ADMINISTRATIVE LAW APPEALS

BUREAU OF SPECIAL EDUCATION APPEALS

In Re: Student v. Braintree Public Schools

BSEA # 2303576

RULING ON SCHOOL’S MOTION FOR SUBSTITUTE CONSENT TO EVALUATE STUDENT

This case comes before the hearing officer on the motion of the Braintree Public Schools (Braintree, District, or School) for an order providing “substitute consent” for evaluation of Student, such that Braintree would be allowed to  complete Student’s three-year re-evaluation by conducting psychological, academic achievement, and observation assessments, without Parent’s consent and over her objection.  Braintree contends that it requires information from these evaluations to provide Student with a free, appropriate public education (FAPE). For reasons set forth below, the School’s Motion is GRANTED.

Procedural History:

On December 14, 2022, Parent filed a request for hearing in which she alleged, among other things, that Braintree had failed to implement Student’s IEP, and had failed to adequately address bullying of Student.  As relief, Parent sought to “have [Student’s] IEP to be followed, him being bullied taken seriously, to have free range to find and place in any school that fits his needs best, [and] for the people who hurt my son to be held responsible.”  Parent later clarified that she is seeking an out-of-district placement such as the Higashi School.

On January 10, 2023, Braintree filed a Response to the hearing request in which it disputed Parent’s allegations and asserted that at all relevant times (2021-2022 and 2022-2023 school years), it had offered and/or provided Student with appropriate IEPs and services.  The School also stated that Student’s re-evaluation was due, and that it had not yet received parental consent for same.

The hearing in this case was originally scheduled for January 18, 2023.  It has been postponed twice, for good cause, at the request of the parties and currently is scheduled for September 26, 27, and 28, 2023.  Conference calls were held on January 3 and February 10, 2023 and a pre-hearing conference on June 23, 2023.  The School has requested an additional postponement to accommodate upcoming evaluations.  A ruling on such request is pending.

On June 27, 2023, Braintree filed the above-entitled Motion in which it reiterated its assertion that Student’s three-year re-evaluation had not been completed because Parent had not consented to psychological or academic achievement assessments or an observation, and further stated that the District could not issue a complete IEP or provide Student with a FAPE without the data obtained from these assessments.  To date, Parent has not filed an opposition or other response to Braintree’s Motion.  As neither party has requested oral argument on this motion, and such argument would not advance my understanding of the relevant issues, this Ruling is issued solely on the basis of the parties’ written submissions, including Parent’s hearing request, Braintree’s Response, and the above-referenced Motion, inclusive of Exhibits A through F, attached thereto.

Factual Background:

The following factual statements are gleaned from the above-referenced documents filed by the parties and are deemed to be true for purposes of this Ruling only.

1. 1. Student is a ten-year-old child who lives with Parent in Braintree and who is eligible for special education services under the disability category of autism. In the past, he also was eligible under the category of “developmental delay.”  Student is currently homeschooled by Parent and receives related occupational and speech therapy services from the District at the Flaherty Elementary School.

1. 2. Prior to March 2021, Student was enrolled in the Boston Public Schools, which conducted his most recent comprehensive evaluation in or about December 2019. This evaluation described Student as having a developmental delay and autism, as well as relative weaknesses with verbal comprehension, limited attention and/or motivation, below-average performance on pre-academic skills, and decreased expressive, receptive, and pragmatic language skills. Testing also revealed difficultly managing his frustration, which, at time, resulted in extreme behavior.  Student was homeschooled by Parent for much of his tenure in the Boston Public Schools.
   3. In or about April 2021, Student enrolled in the Braintree Public Schools, where he initially was placed in a substantially separate Developmental Program located at the Flaherty Elementary School. Upon observation, District personnel determined that the Flaherty classroom was overly restrictive for Student, who had more advanced skills than his peers, and  proposed transferring Student to a substantially separate Developmental classroom located at the Morrison Elementary School. Parent consented to this change.
   4. Parent became dissatisfied with the Morrison placement because she felt that the District did not appropriately address reports of bullying of Student, that teachers did not adequately communicate with Parent, and that staff might not be providing Student with appropriate support for dysregulation. Attempts to resolve these issues were unsuccessful, and, on or about January 24, 2022, Parent removed Student from the Morrison School and began homeschooling him.  As referenced above, Student has been homeschooled since that date, returning to the Flaherty School for related services.
   5. On November 7, 2022, Braintree issued an N-1 form proposing a three-year re-evaluation consisting of psychological, academic achievement, speech/language, and occupational therapy assessments as well as observation. The form noted that “it has been three years since [Student’s] last evaluation…Special education timelines and parent concerns were used as the basis for the proposed action.” The form further stated that Student “is a homeschooled student who currently comes to the Flaherty School for occupational therapy and speech-language services. His school history is significant for periods of homeschooling, moves between districts, and retention in the 1^st grade during the 2020-2021 school year. He has a diagnosis of autism…and his mother reported an additional diagnosis of anxiety.”  (Ex. A)
   6. In or about February 2023, Parent consented to the speech/language and occupational therapy assessments, which were completed by Braintree. Parent refused to consent to the psychological and academic evaluations and classroom observation proposed by the District, maintaining that she had scheduled a private evaluation of Student in these areas for August 3, 2023.
   7. On April 14, 2023, after a Team meeting, Braintree issued a “partial IEP” consisting of a single goal, speech and language, and a single service, speech/language therapy, 2×30 minutes per 5-day cycle. The proposed placement was the substantially-separate classroom at the Morrison School.  Parent rejected the partial IEP and placement on May 12, 2023.
   8. In addition to the partial IEP, the District proposed an extended evaluation. According to the N-1 form dated April 14, 2023, which accompanied the partial IEP, Braintree needed the extended evaluation because it was “unable to offer a full IEP for services as the District does not have appropriate evaluative data in the areas of cognition and achievement to identify the services and goals and objectives that would enable [Student] to access his [FAPE] in the least restrictive environment.”  (Ex.C)  Braintree proposed that the extended evaluation take place between May 5 and June 20, 2023 in a mutually-agreeable elementary school.
   9. Accompanying the partial IEP was an Extended Evaluation Form which stated that “[Parent] and the team identified concerns regarding [Student’s] memory, writing, and reading skills. The school team proposes evaluation in the cognitive and achievement domains to gain a better understanding of [Student’s] overall academic profile.”  (Ex. D)
   10. On May 12, 2023, Parent rejected the proposed extended evaluation.
   11. During a pre-hearing conference held on June 23, 2023, Braintree proposed conducting the extended evaluation at the Flaherty Elementary School, believing that Parent would agree to this option. Parent refused to consent and reiterated her request for an out of district placement for Student.
   12.  Student was scheduled to undergo a private evaluation on August 3, 2023.

ISSUE PRESENTED:

            The sole issue raised in this Motion is whether Parent’s failure or refusal to consent to the extended evaluation proposed by Braintree will deprive Student of a FAPE such that the District may proceed with the evaluation in the absence of such consent.

Position of Braintree Public Schools

Student is overdue for a three-year re-evaluation. Substitute consent is warranted because without up-to-date information about Student’s cognitive abilities, learning profile, academic achievement and social/emotional needs, the District is unable to determine the supports, services, and placement necessary to provide him with a FAPE.  Additionally, Braintree has had limited opportunities to observe Student in a school setting because he has been homeschooled since January 2022.  Lastly, Parent and Braintree disagree on the services and placement that Student needs to receive a FAPE.

Position of Parent

Because Parent has not filed a response to the District’s Motion, her reasons for refusing to consent to the proposed evaluation have not been formally presented.  Based on Parent’s statements made during the most recent pre-hearing conference, it appears that Parent does not trust that District personnel will conduct appropriate evaluations and/or assure that Student will not be traumatized by the process.  Further, Parent has asserted that the District should rely on the pending private evaluation.

DISCUSSION:

Legal Framework

Initial Evaluations and Re-evaluations

The IDEA and Massachusetts law require school districts to evaluate eligible or potentially-eligible students in all areas related to the child’s suspected disability, in order to ensure that services are individually tailored to meet that child’s unique needs. 20 U.S.C., §1400(d)(1)(A), (B); 20 U.S.C., §1414(b)(3)(B); 34 CFR §300.301-304; 603 CMR 28.04(2)(a).  It is well-settled that those needs may be “academic, physical, emotional or social.”  Lenn v. Portland School Committee, 998 F. 2d 1083, 1089 (1^st Cir 1993), cited in Mr. and Mrs. I. v. Maine School Administrative District No. 55, 47 IDELR 121 (1^st Cir. 2007).

Before it can provide special education services, a school district must conduct an initial evaluation to determine whether a child is eligible for special education and, if so, to develop an IEP.  20 USC §1414(a)(1)(A); 34 CFR 300.301(a); MGL c. 71B, §3, 603 CMR 28.04(2).  Districts are required to review eligible students’ progress at least annually, and to conduct re-evaluations no less frequently than every three years, as well as “if the public agency determines that the educational or related services needs, including improved academic achievement and functional performance, of the child warrant a re-evaluation,” [1] or if the parent or teacher requests re-evaluation. 20 USC §1414(a)(2)(B); 34 CFR §300.303(a)-(b); 603 CMR 28.04(3); In Re: Susana, BSEA No. 1606551 (Reichbach, 2016)

Extended Evaluations

Massachusetts regulations allow school districts to conduct extended evaluations, with parental consent, when the “the Team finds the evaluation information insufficient to develop an IEP…”  603 CMR 28.05(2)(b).  This regulation further states that the Team shall determine the length of time required to complete an extended evaluation, and the type of information necessary to develop a complete IEP.  The Team may meet at intervals during the extended evaluation period and must meet when the extended evaluation is completed in order to develop a new or amended IEP. The extended evaluation is not considered a “placement,” and must not exceed eight school weeks.  Id.  Prior to conducting an extended evaluation, if a district has enough information to formulate some objectives and services, it must issue a partial IEP containing such objectives and services and must implement the partial IEP acceptance by the parent.  603 CMR 28.05(2)(b)(1),

Substitute Consent  

Federal and state law require school districts to obtain parental consent before conducting initial evaluations and re-evaluations.  20 USC, §1414(a)(B) and (c); 34 CFR Sec. 300.300(a) (for initial evaluations); 34 CFR Sec. 300.300(c) (for re-evaluations); 603 CMR 28.07(1).  Massachusetts regulations define “consent” as:

agreement by a parent who has been fully informed of all information relevant to the activity for which consent is sought…understands and agrees in writing to the carrying out of the activity and understands that the granting of consent is voluntary and may be revoked at any time.”  603 CMR 28.02

In situations where parents refuse to consent to an evaluation, federal law authorizes states to establish procedures procedure to permit schools to conduct such evaluations without parental consent if a hearing officer finds that the parent’s refusal of consent would deprive the child of a FAPE.  20 USC §1414(a)(1)(D) and (c); 34 CFR 300.300(c), 603 CMF 28.07(1)(b),

Applicable Massachusetts law does not allow for such “substitute consent” in situations where parents refuse consent to an initial evaluation.  With respect to re-evaluations, however, state regulations authorize a school district to seek substitute consent to conduct such re-evaluations, over parental objection, when the district believes re-evaluation is necessary to provide a student with FAPE. The pertinent regulation states the following:

If, subsequent to an initial evaluation…the school district is unable to obtain consent to a reevaluation…the school district shall consider whether such action will result in denial of a [FAPE] to the student.  If, after consideration, the school district determines that the parent’s failure or refusal to consent will result in denial of a [FAPE] to the student, it shall seek resolution of the dispute through the procedures provided in 603 CMR 28.08.  603 CMR 28.07(1)(b)

Situations in which BSEA hearing officers, relying on guidance from courts, have ordered substitute consent, include “when a student has reportedly made significant progress towards one or more goals, and when a student is out of school on homebound instruction for an extended period of time during which his medical condition changes.” In re Susana, supra. (internal quotations omitted).  When determining whether to grant substitute consent, a hearing officer must consider whether the district has informed the parent of the evaluations and instruments it intends to employ, and whether it has made reasonable efforts to obtain informed consent from the parent.  See, e.g., In Re: Westfield Public Schools, BSEA No. 2212235 (Kantor Nir, May 2023), citing In Re: Norwell Public Schools, BSEA No.1901470  (Figueroa, 2018).

Application of Legal Standard

Braintree Provided Adequate Prior Notice and Efforts to Obtain Consent

           Braintree first sought to conduct a three-year re-evaluation of Student via an N-1 form dated November 7, 2022. As noted in Paragraph 5, above, the form provided a rationale for the evaluation and listed the areas to be assessed.  On February 10, 2023, parent accepted the proposed evaluation “in part,” consenting  to assessments in occupational therapy and speech and language, only.  Parent does not allege that Braintree failed to give her prior notice of its proposed three-year re-evaluation.  In any event, the November 7, 2022 N-1 form and Parent’s response thereto indicate that she received such prior notice, and the parties’ submissions contain no contrary evidence.

Similarly, Parent received prior written notice of the proposed extended evaluation in the N-1 form issued on April 14, 2023, and in the extended evaluation form, both of which accompanied the proposed partial IEP.  As was the case in November, Parent has not alleged that she lacked prior notice of the proposed evaluation, and her written rejection of same indicates receipt of such notice.  Regarding efforts to secure consent, there is no dispute that at the pre-hearing conference held on June 23, 2023, the District offered to conduct the extended evaluation at the Flaherty Elementary School, in the belief that Parent would be amenable to this location, and hence would consent to the extended evaluation.

The documents submitted by the District in support of its Motion, coupled with the June 23, 2023 offer to conduct the evaluation in what the District believed to be Parent’s preferred location, support a conclusion that Braintree provided adequate prior notice of its re-evaluation proposals, both in November 2022 and in April 2023, and made adequate efforts to secure consent.  Parent has made no allegations, and provided no evidence, to the contrary. I conclude, therefore, that Braintree has met its procedural obligations in this regard.

Student will be Denied a FAPE if the Extended Evaluation is Not Conducted.

            In the instant case, there is no dispute that Student has not received a comprehensive evaluation since his re-evaluation of December 2019, conducted by the Boston Public Schools.  As such, Student’s three-year re-evaluation is long overdue; it should have been completed no later than December 2022. Although Student did undergo occupational therapy and speech/language assessments in or about February or March of 2023, he has not received formal psychological or academic evaluations since 2019. Moreover, Student has been homeschooled since late January 2022, after only a brief period within District schools, and Braintree educators have not had an opportunity to observe him in a classroom setting since that time. In addition, Student carries complex diagnoses, including developmental delays, ASD, and, according to Parent, anxiety, which affect his functioning in multiple domains.  Lastly, Parent is seeking an out-of-district placement for Student, while to date, Braintree maintains that it can provide him with a FAPE within the District.

The School asserts that without updated information about Student’s cognitive, academic, and classroom functioning, it lacks data to develop a complete IEP and propose a placement.  Parent has presented no information to the contrary.  Further, the proposal for an extended evaluation, which would allow teachers and other providers to observe Student’s in-school functioning over a period of time, is reasonable and appropriate, given the complexity of Student’s profile the small amount of time that he has spent in a classroom setting, and the fact that Parent is seeking an out of district placement.

Parent has argued that Braintree can and should rely on the results of the pending private evaluation. The pertinent law does not support this argument.  While the TEAM must consider the results of outside evaluation if Parent makes the report available, the School retains the right and obligation to conduct its own evaluation as well, unless the parties agree otherwise.  See:  In Re: Scituate Public Schools, BSEA No. 07-6746 (Putney-Yaceshyn, 2007) and provisions cited therein; In Re: Lincoln-Sudbury Public Schools, BSEA No.10-6037 (Berman, 2010).

Finally, it should be noted that Parent is not without recourse here.  Under federal and state law, she is entitled to dispute the School’s evaluation once it is performed, as well as any IEP or amendment that incorporates that evaluation.  In so doing, Parents may present the results of her August 2023 private evaluation to the Team for consideration, and may request an independent evaluation. Finally, if the parties continue to disagree about an appropriate placement for Student, Parent may dispute the results of the School’s evaluation in the context of her pending due process hearing,

RULING AND ORDER

Because the Parent’s refusal to consent to the evaluation proposed by the School constitutes a barrier to provision of FAPE, the School may conduct this evaluation without consent of Parent.

By the Hearing Officer:

/s/Sara Berman

___________________

Sara Berman

Dated:  August 8, 2023

 

[1] 34 CFR §300.303(a)