COMMONWEALTH OF MASSACHUSETTS
Division of Administrative Law Appeals
Bureau of Special Education Appeals
In Re: Lowell Public Schools
BSEA # 11-0039
DECISION
This decision 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 c. 71B), the state Administrative Procedure Act (MGL c. 30A), and the regulations promulgated under these statutes.
A hearing was held on September 3, 2010 in Malden, MA before William Crane, Hearing Officer. Those present for all or part of the proceedings were:
Father (by telephone)
Deborah Smith Assistant Special Education Director, Lowell Public Schools
Jane Mosher-Canty Attorney for Lowell Public Schools
The official record of the hearing consists of documents submitted by Parent and marked as exhibit P-1; documents submitted by the Lowell Public Schools (Lowell) and marked as exhibits S-1 through S-15; and approximately one hour of recorded oral testimony and argument. Oral closing arguments were made on September 3, 2010. Parents submitted documents late on September 7, 2010, which were admitted into the record without objection, and the record closed on that date.
The issue to be decided in this case is whether Lowell may proceed with its proposed three-year evaluation without Parents’ consent. Lowell has the burden of persuasion regarding this issue.1
Student lives with his mother and father (Parents) in Lowell, Massachusetts. Student is a seven-year-old, second-grader in the Lowell Public Schools. He has been diagnosed with receptive and expressive communication deficits. His most-recent IEP calls for academic support for two hours per week in the general education classroom and speech-language services for one hour per week outside of the general education classroom. Testimony of Father, Smith; exhibit S-1.
The most recent evaluations allowed by Parents were a speech-language assessment in December 5, 2005, an academic assessment on the same date, and an informal behavioral observation report on June 7, 2006. Testimony of Smith; exhibits S-3, S-4, S-7.
Lowell has proposed testing to include a psychological assessment, a home assessment (for the purpose of obtaining a developmental history), an academic assessment, a speech-language assessment, and a functional behavior assessment. Testimony of Smith; exhibits S-8, S-9.
It is not disputed that Student is an individual with a disability, falling within the purview of the federal Individuals with Disabilities Education Act (IDEA)2 and the Massachusetts special education statute.3
With respect to three-year evaluations, the Massachusetts special education regulations provide, in relevant part, as follows:
Annual reviews and three-year reevaluations . The school district shall review the IEPs and the progress of each eligible student at least annually. Additionally, every three years, or sooner if necessary, the school district shall, with parental consent, conduct a full three-year reevaluation consistent with the requirements of federal law.4
Federal special education regulations further provide, in relevant part, as follows:
Parental consent for reevaluations . (1) Subject to paragraph (c)(2) of this section, each public agency–
(i) Must obtain informed parental consent, in accordance with §300.300(a)(1), prior to conducting any reevaluation of a child with a disability.
(ii) If the parent refuses to consent to the reevaluation, the public agency may, but is not required to, pursue the reevaluation by using the consent override procedures described in paragraph (a)(3) of this section [referring to the due process procedures].5
Courts have made clear that, as a general rule, a parent may not preclude a school district from evaluating their son or daughter, nor may a parent force a school district to rely upon a parent’s own evaluation. Rather, if a parent desires special education services, he or she may be required to allow the school district to conduct its own assessments for the purpose of the school district’s determining the extent of the student’s special education needs and how those needs should be addressed.6
As noted above, Student was last evaluated by Lowell in 2005 and 2006. As a result, Lowell does not have current, objective indicators of Student’s educational strengths and weaknesses, or how Student’s special education needs, if any, should be met. To obtain this information, a new, three-year evaluation is required. In fact, a three-year evaluation is overdue.
Parents have refused permission for Lowell’s proposed three-year evaluation. At the hearing, Father took the position that his son is progressing well in school, that his son has been successful in school, and that a new evaluation is not needed. Father provided documents in support of his son’s progress and success in school. Father has been a teacher and cares deeply about his son’s education. Testimony of Father; exhibit P-1.
However, even if I were to agree with Father entirely regarding his son’s progress and success in school, this would not change the necessity for an updated three-year evaluation by Lowell. If Lowell’s new evaluations, in fact, prove Father to be correct, future special education and related services may not be needed or may be adjusted so that they are commensurate with Student’s current educational needs. Without new evaluations, it simply is not possible to do what state and federal special education law require—that is, to determine whether special education or related services are needed, and to tailor any needed special education and related services to Student’s current strengths and weaknesses.7
It is also not sufficient that Parents have begun the process of obtaining an independent evaluation for their son.8 As mentioned above, Lowell is entitled to conduct its own evaluations.9
I conclude that an updated three-year evaluation is necessary for Lowell to determine what educational services and placement are appropriate for Student. Lowell should conduct the evaluation of Student notwithstanding the lack of consent from Parents. The evaluation should include a psychological assessment, a home assessment (for the purpose of obtaining a developmental history), an academic assessment, a speech-language assessment, and a functional behavior assessment.
Order
Lowell shall conduct a three-year evaluation, to include a psychological assessment, a home assessment (for the purpose of obtaining a developmental history), an academic assessment, a speech-language assessment, and a functional behavior assessment.
By the Hearing Officer,
William Crane
Dated: September 10, 2010
COMMONWEALTH OF MASSACHUSETTS
Division of Administrative Law Appeals
Bureau of Special Education Appeals
THE BUREAU’S DECISION, INCLUDING RIGHTS OF APPEAL
Effect of the Decision
20 U.S.C. s. 1415(i)(1)(B) requires that a decision of the Bureau of Special Education Appeals be final and subject to no further agency review. Accordingly, the Bureau cannot permit motions to reconsider or to re-open a Bureau decision once it is issued. Bureau decisions are final decisions subject only to judicial review.
Except as set forth below, the final decision of the Bureau must be implemented immediately. Pursuant to M.G.L. c. 30A, s. 14(3), appeal of the decision does not operate as a stay. Rather, a party seeking to stay the decision of the Bureau must obtain such stay from the court having jurisdiction over the party’s appeal.
Under the provisions of 20 U.S.C. s. 1415(j), “unless the State or local education agency and the parents otherwise agree, the child shall remain in the then-current educational placement,” during the pendency of any judicial appeal of the Bureau decision, unless the child is seeking initial admission to a public school, in which case “with the consent of the parents, the child shall be placed in the public school program”. Therefore, where the Bureau has ordered the public school to place the child in a new placement, and the parents or guardian agree with that order, the public school shall immediately implement the placement ordered by the Bureau. School Committee of Burlington, v. Massachusetts Department of Education , 471 U.S. 359 (1985). Otherwise, a party seeking to change the child’s placement during the pendency of judicial proceedings must seek a preliminary injunction ordering such a change in placement from the court having jurisdiction over the appeal. Honig v. Doe , 484 U.S. 305 (1988); Doe v. Brookline , 722 F.2d 910 (1st Cir. 1983).
Compliance
A party contending that a Bureau of Special Education Appeals decision is not being implemented may file a motion with the Bureau of Special Education Appeals contending that the decision is not being implemented and setting out the areas of non-compliance. The Hearing Officer may convene a hearing at which the scope of the inquiry shall be limited to the facts on the issue of compliance, facts of such a nature as to excuse performance, and facts bearing on a remedy. Upon a finding of non-compliance, the Hearing Officer may fashion appropriate relief, including referral of the matter to the Legal Office of the Department of Education or other office for appropriate enforcement action. 603 CMR 28.08(6)(b).
Rights of Appeal
Any party aggrieved by a decision of the Bureau of Special Education Appeals may file a complaint in the state superior court of competent jurisdiction or in the District Court of the United States for Massachusetts, for review of the Bureau decision. 20 U.S.C. s. 1415(i)(2).
An appeal of a Bureau decision to state superior court or to federal district court must be filed within ninety (90) days from the date of the decision. 20 U.S.C. s. 1415(i)(2)(B).
Confidentiality
In order to preserve the confidentiality of the student involved in these proceedings, when an appeal is taken to superior court or to federal district court, the parties are strongly urged to file the complaint without identifying the true name of the parents or the child, and to move that all exhibits, including the transcript of the hearing before the Bureau of Special Education Appeals, be impounded by the court. See Webster Grove School District v. Pulitzer Publishing Company , 898 F.2d 1371 (8th Cir. 1990). If the appealing party does not seek to impound the documents, the Bureau of Special Education Appeals, through the Attorney General’s Office, may move to impound the documents.
Record of the Hearing
The Bureau of Special Education Appeals will provide an electronic verbatim record of the hearing to any party, free of charge, upon receipt of a written request. Pursuant to federal law, upon receipt of a written request from any party, the Bureau of Special Education Appeals will arrange for and provide a certified written transcription of the entire proceedings by a certified court reporter, free of charge.
1
Schaffer v. Weast, 126 S. Ct. 528, 537 (2005) (burden of persuasion in an administrative hearing is placed upon the party seeking relief; a party who has the burden of persuasion “ loses if the evidence is closely balanced” ).
2
20 USC 1400 et seq .
3
MGL c. 71B.
4
603 CMR 28.04(3).
5
34 CFR 300.300(c).
6
E.g., M.T.V. v. Dekalb County School District , 446 F.3d 1153, 1160 (11 th Cir. 2006) (parents cannot force the school to rely solely on parents’ independent evaluation); Johnson by Johnson v. Duneland Sch. Corp . , 92 F.3d 554, 558 (7th Cir. 1996) (school district has the right to conduct its own evaluation); Andress v. Cleveland Indep. Sch. Dist ., 64 F.3d 176, 178-79 (5th Cir. 1995) (school district has the right to reevaluate a student using its own personnel); Dubois v. Connecticut State Board of Education , 727 F. 2d 44, 48 (2 nd Cir. 1984) (school system may insist on evaluation by qualified professionals who are satisfactory to the school officials); Vander Malle v. Ambach , 673 F.2d 49, 53 (2nd Cir. 1982) (school is entitled to have student examined by qualified psychiatrist of their choosing); M.L. ex rel. A.L. v. El Paso Independent School Dist . , 2009 WL 1019969 ( W.D.Tex. 2009 (parent “ may not … assert that A.L. is entitled to special education services while simultaneously refusing to allow [the school district] to evaluate A.L. to determine what those services may be”).
7
See Forest Grove Sch. Dist. v. T.A ., 129 S.Ct. 2484 , n.1 (2009) (“IEP is an education plan tailored to a child’s unique needs”).
8
There should be communication between evaluators to avoid inappropriate duplication of test instruments.
9
See cases cited in note 6, above, and accompanying text.