COMMONWEALTH OF MASSACHUSETTS
BUREAU OF SPECIAL EDUCATION APPEALS
In Re: Mansfield Public Schools BSEA # 05-4247
RULING ON MOTION FOR SUMMARY JUDGMENT
Introduction
This is a dispute over whether the Mansfield Public Schools (Mansfield) must pay for an independent evaluation obtained privately by Student’s parent (Parent).
Mansfield filed a Motion for Summary Judgment on June 1, 2005. Parent filed her opposition on June 17, 2005.
Standard for Deciding a Motion for Summary Judgment
The Executive Office of Administration and Finance adjudicatory rules of practice and procedure allow for a party to file a motion for summary judgment or summary decision when the party is of the opinion that there is no genuine issue of fact relating to all or part of a claim or defense, and that the party is entitled to prevail as a matter of law.1
The courts have explained that in order for the moving party to prevail on a motion for summary judgment, the moving party must demonstrate that “there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.”2 A fact is material only when its resolution affects the outcome of the case.3
Facts
There is no dispute as to the following material facts.
1. In a letter dated March 21, 2005, Parent requested that Mansfield fund an independent evaluation for her son (Student). Specifically, Parent indicated in her letter that she does not believe that her son is receiving appropriate services, that she is “not sure” what services he needs, that she would therefore be obtaining a “neuropsychological and educational independent evaluation” from Dr. Patricia Wycoff, and that she intended Mansfield to pay for the evaluation. Mansfield’s exhibit A.
2. In a letter dated March 22, 2005 to Parent, Mansfield’s Special Education Director (Patricia Cosgrove) denied Parent’s request to fund the independent evaluation. Specifically, Ms. Cosgrove explained that after reviewing Student’s file and initial evaluations completed during the 2002-2003 school year, she recommended Mansfield “move up” Mansfield’s three-year evaluation of Student, so that it would be completed by the end of the 2004-2005 school year. Ms. Cosgrove further indicated that the particular evaluations that would comprise Mansfield’s three-year evaluation of Student be determined, in part, through a process of asking Parent and Student’s teachers to explain their concerns regarding Student. Mansfield’s exhibit B.
3. By letter of March 25, 2005, Mansfield, through its attorney, filed with the Bureau of Special Education Appeals (BSEA), a hearing request concerning Parent’s request for an independent evaluation. Mansfield’s exhibit C.
4. By letter of March 31, 2005, Parent responded to Ms. Cosgrove’s letter of March 22, 2005. In her letter, Parent explained that her son is doing “poorly” in school, noting his difficulties with transitions, teacher expectations, tardiness, and failing grades on tests and quizzes. She also wrote that her son is having “emotional difficulties”. Parent again stated her view that Mansfield does not understand her son’s needs and how they may be met, and therefore an independent evaluation is necessary. Mansfield’s exhibit D.
5. By letter of April 4, 2005, Ms. Cosgrove responded to Parent’s letter of March 31, 2005, reiterating Mansfield’s offer to move up the three-year evaluation that had been scheduled for December 2005 and enclosing Mansfield’s recommendation for academic testing, psychological testing and classroom observation. Ms. Cosgrove also noted in her letter that the specific test instruments used for the evaluation would depend upon Parent’s concerns. Mansfield’s exhibit E.
6. Mansfield has alleged, and Parent has not disputed, that Parent obtained independent evaluations of Student, and these evaluations were reviewed by the IEP Team at a meeting on May 18, 2005.
7. Mansfield has alleged, and Parent has not disputed, that Parent has not returned a signed consent form for the evaluations, and therefore Mansfield has not had an opportunity to conduct its own evaluations of Student.
Discussion
It is apparent from the facts in this case that Parent has had significant concerns regarding her son’s special education needs and whether those needs were being addressed appropriately by Mansfield. In order to obtain expert information that Parent believes necessary in order to address this concern, Parent obtained at her own expense independent neuropsychological and educational evaluations. She is seeking reimbursement from Mansfield for these evaluations.
Mansfield has not directly disputed Parent’s concerns regarding her son, but rather has taken a position similar to that of Parent – that is, evaluations (that normally would be done in the first half of the 2005-2006 school year) should be completed by Mansfield by the end of the 2004-2005 school year in order to advise the IEP Team regarding Student’s special education needs and how they should be met. Mansfield was willing to engage in a discussion with Parent as to the kinds of testing that would be performed by Mansfield, with the goal of evaluating Student in areas of concern expressed by Parent and Student’s teachers, but Mansfield was unwilling to consider funding Parent’s independent evaluations until it had first completed its own evaluations of Student.
As a general rule, the Massachusetts and federal special education regulations envision the process proposed by Mansfield – that is, prior to requesting public funding of an independent evaluation, a parent is to consider the results of the school district’s evaluation(s). After consideration of the evaluation results, the parent determines whether he or she agrees or disagrees with the school district’s evaluation(s). On the basis of a disagreement with the school district’s evaluation(s), the parent then seeks to obtain an additional or “independent” evaluation at public expense.
This process is reflected in the following state regulatory language:
Independent education evaluations . Upon receipt of evaluation results, if the parent disagrees with an initial evaluation or re-evaluation completed by the school district, then the parent may request an independent educational evaluation.4
A BSEA decision in May 2004 provides additional, useful analysis of this state regulatory language. In that decision, the Hearing Officer determined that a parent was not entitled to reimbursement for an independent neuropsychological evaluation since the parent had declined to consent to the school district’s neuropsychological evaluation.5
Similar to the state regulations quoted above, the federal special education regulations provide as follows:
Parent right to evaluation at public expense . (1) A parent has the right to an independent educational evaluation at public expense if the parent disagrees with an evaluation obtained by the public agency.6
The following additional regulatory language (all within the same section of the regulations as the above-quoted state regulatory language) further clarifies the intent that the request for an independent evaluation is to follow (and essentially reflect a disagreement with) the school district’s evaluation(s):
The right to this publicly funded independent educational evaluation under 603 CMR 28.04(5)(c) continues for sixteen (16) months from the date of the evaluation with which the parent disagrees .7
If the parent is requesting an evaluation in an area not assessed by the school district , the student does not meet income eligibility standards, or the family chooses not to provide financial documentation to the district establishing family income level, the school district shall respond in accordance with the requirements of federal law. The district shall either agree to pay for the independent educational evaluation or within five school days, proceed to the Bureau of Special Education Appeals to show that its evaluation was comprehensive and appropriate. If the Bureau of Special Education Appeals finds that the school district’s evaluation was comprehensive and appropriate, then the school district shall not be obligated to pay for the independent educational evaluation requested by the parent.8
Parent has made no allegations that Mansfield has declined to evaluate Student in an area of suspected need, including the areas addressed by her independent evaluation, or that Mansfield’s evaluations would not be comprehensive or appropriate. Rather, Parent has essentially ignored the process of Mansfield evaluating her son – that is, she declined to consent to any of Mansfield’s proposed evaluations and did not ask Mansfield to conduct any alternative evaluations. Parent simply sought to have her independent evaluation funded without agreeing or disagreeing with any actual or proposed evaluations by Mansfield.
The above-quoted regulatory language makes clear that Parent may not obtain public funding of her independent evaluation through the process that she has chosen. At the very least, the above state and federal regulatory language requires that Parent’s request for a publicly-funded independent evaluation reflect a disagreement with Mansfield’s evaluations.
Conclusion and Order
For the reasons stated above, I find that there is no genuine issue of material fact and Mansfield is entitled to prevail as a matter of law.
I conclude that Mansfield is not obligated to fund Parent’s independent evaluations.
Accordingly, Mansfield’s Motion for Summary Judgment is ALLOWED.
By the Hearing Officer,
_________________
William Crane
Dated: June 27, 2005
COMMONWEALTH OF MASSACHUSETTS
BUREAU OF SPECIAL EDUCATION APPEALS
EFFECT OF BUREAU DECISION AND 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).
Under Massachusetts General Laws, Chapter 30A, Section 14(1), appeal of a final Bureau decision to state superior court must be filed within thirty (30) days of receipt of the decision.
The federal courts have ruled that the time period for filing a judicial appeal of a Bureau decision in federal district court is also thirty (30) days of receipt of the decision, as provided in the Massachusetts Administrative Procedures Act, M.G.L. c.30A . Amann v. Town of Stow , 991 F.2d 929 (1 st Cir. 1993); Gertel v. School Committee of Brookline , 783 F. Supp. 701 (D. Mass. 1992).
Therefore, an appeal of a Bureau decision to state superior court or to federal district court must be filed within thirty (30) days of receipt of the Bureau decision by the appealing party.
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
801 CMR 1.01(7)(h).
2
Celotex Corp. v. Catrett, 477 US 317, 322 (1986) (quoting Fed.R.Civ.P. 56(c)). See also Pederson v. Time, Inc . 404 Mass. 14, 16-17 (1989).
3
Anderson v. Liberty Lobby, Inc., 477 US 242, 248 (1986).
4
603 CMR 28.04(5).
5
In re: Abington Public Schools , BSEA # 04-3493, 11 MSER 16 (2004) (Figueroa).
6
34 CFR 300.502(b).
7
603 CMR 28.04(5)(c)(vi) (emphasis supplied).
8
603 CMR 28.04(5)(d) (emphasis supplied).