Medford Public Schools – BSEA # 09-2774



<br /> Medford Public Schools – BSEA # 09-2774<br />

COMMONWEATLH OF MASSACHUSETTS

BUREAU OF SPECIAL EDUCATION APPEALS

In re: Medford Public Schools

BSEA# 09-2774

RULING ON MEDFORD PUBLIC SCHOOLS’ MOTION TO DISMISS PARENTS’ HEARING REQUEST WITH PREJUDICE

BACKGROUND

On October 23, 2008 Parents filed a Hearing Request with the BSEA against the Medford Public Schools (MPS) which requested full reimbursement for four Independent Evaluations (IEE) which Parents had privately obtained. Parents also filed documentation in support of their position. A hearing was initially scheduled for November 28, 2008. On November 4, 2008 MPS filed a request for postponement of the initial hearing date. On November 7, 2008 MPS filed its Response to Parents’ Hearing Request along with documentation supporting MPS’ position. On November 10, 2008 Parents filed a response to MPS’ response. On November 12, 2008 a pre-hearing conference call (PHCC) took place to clarify the issue in dispute. On November 14, 2008 MPS filed a Motion to Dismiss Parents’ Hearing Request with Prejudice (MTD) along with a Memorandum of Law in support of its position. On November 17, 2008 Parents filed a response to the discussion at the PHCC. On November 18, 2008 Parents filed an Opposition to MPS’ MTD. On November 20, 2008 the Hearing Officer granted MPS’ postponement request and scheduled a telephonic motion session for December 8, 2008 to hear oral argument regarding MPS’ MTD and Parents’ Opposition thereto. On November 24, 2008 MPS filed an affidavit from MPS’ Director of Special Education. Oral arguments took place on December 8, 2008.

STATEMENT OF POSITIONS

PARENTS’ POSITION

Parents’ position is that they should be fully reimbursed by MPS for the entire costs of their four privately funded IEEs: 1) speech/language evaluation; 2) academic evaluation; 3) neuropsychological evaluation; and 4) central auditory processing evaluation. Parents believe that they are entitled to full reimbursement because Parents contend that MPS never agreed to fund these four IEEs nor requested a hearing before the BSEA within five days of Parents’ request for their four IEEs. Therefore, Parents contend that they were justified in seeking their own evaluations and that MPS must reimburse Parents their entire costs for obtaining these evaluations.

SCHOOL’S POSITON

MPS’ position is that it did not reject Parents’ request for four IEEs or seek a hearing before the BSEA within five days after Parents’ Request. Rather, MPS contends that within five days MPS sent Parents the necessary IEE forms and notice that MPS would only fund IEEs when performed by duly credentialed professionals who accept the rates set by the Massachusetts Division of Health Care Finance and Policy (MDHCFP). Therefore, MPS contends that Parents were on notice at the outset that MPS would only pay the rate setting rates (RSR) for the various IEEs.

MPS contends that all of Parents’ evaluators refused to accept RSR. MPS agreed to reimburse/did reimburse Parents the maximum RSR for Parents’ private speech/language IEE and academic IEE. While MPS contends that it did not agree to the neuropsychological IEE it did agree to a psychological IEE. MPS did not agree to fund the central auditory processing IEE. MPS admits that it did not seek a hearing before the BSEA regarding Parents’ request for the neuropsychological IEE or the central auditory processing IEE. However, MPS contends that at a resolution session held on November 7, 2008 MPS agreed to fund/reimburse Parents for their neuropsychological IEE and central auditory processing IEE at the maximum RSR. MPS contends that it has now done everything that a Hearing Officer could order at a BSEA hearing. Therefore, MPS believes that its MTD should be granted, with prejudice.

RULING

After a careful review of all written documentation submitted by both Parents and MPS; MPS’ written MTD and Memorandum of Law; Parents’ written Opposition to MPS’ MTD; the oral arguments offered by Parents and MPS at the telephonic motion session; and a review of the applicable law; MPS’ MTD is GRANTED IN PART AND DENIED IN PART .

My analysis follows.

Pursuant to the Massachusetts Standard Rules of Adjudicatory Procedure 801 CMR 1:01(7)(g); BSEA Hearing Rule XVII; and both the Federal and Massachusetts Rules of Civil Procedure 12(b)(6); a party may file a Motion to Dismiss for failure of the Plaintiff/Petitioner to state a claim upon which relief may be granted.

Massachusetts Special Education Regulation 603 CMR 28.04(5) provides, in pertinent part:
(5) Independent education evaluations . Upon receipt of evaluation results, if a parent disagrees with an initial evaluation or reevaluation completed by the school district, then the parent may request an independent education evaluation.

A) All independent education evaluations shall be conducted by qualified persons who are registered, certified, licensed or otherwise approved and who abide by the rates set by the state agency responsible for setting such rates . Unique circumstances of the student may justify an individual assessment rate that is higher than that normally allowed…. Emphasis added.

D) If the parent is requesting an independent education 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 education 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 education evaluation requested by the parent.

On January 18, 2008 Parents filed a written request for four IEEs with MPS. On

January 22, 2008 MPS sent Parents: 1) An N1-Notice of Proposed School District Action; 2) IEE Request Forms; 3) A two page letter from the Director of Pupil Services for MPS entitled Request for Public Funding of an Independent Educational Evaluation (MPS IEE letter) which basically summarized 603 CMR 28.04(5); and 4) a three page MPS IEE Notice essentially replicating 603 CMR 28.08(5). Based upon a thorough review of the above documents, Parents were clearly on notice as of January 22, 2008 of the provisions of 603 CMR 28.04(5) and that MPS would only fund IEEs that conformed to the regulatory standards of 603 CMR 28.04(5). Therefore, Parents proceeded at their own risk in obtaining four private evaluations none of which conformed to 603 CMR 28.04(5) i.e., none of Parents’ evaluators accepted the RSR established by the MDHCFP. Each of Parents’ evaluators charged more than RSR.

Parents argue that MPS should have either totally funded their evaluations
or if MPS refused it should have requested a BSEA hearing within five days. All of the documents referenced in the proceeding paragraph indicate that MPS did not reject or refuse Parents’ IEE request, but rather intended to fund the IEE at the RSR pursuant to 603 CMR 28.04(5)(a), and was seeking the necessary information to do just that. Indeed, the N1 Narrative Description of School District Proposal states:

Confirming communication regarding your [name] and his most recent re-evaluation assessments, you have requested in writing independent evaluations of assessments administered by the Medford Public School System (MPS). Please find enclosed a packet that explains and details guidelines, requirements, sliding scale chart, as well as Evaluation Request Form(s) for each evaluation you are seeking. Please return the completed forms as soon as possible so they can be forward to the Office of Pupil Services in order for a contract to be developed .

Should you have any questions please notify your local contact person, Mrs. Macone, at 781-393-2177, Ext. 3515. Emphasis added.

Parents essentially argue that there is no type of rate setting requirements under federal regulations. See 34 CFR 300.502(b)(1) & (2). However, 34 CFR 300.502(a)(3) defining (i) Independent educational evaluation and (ii) Public expense provides:
(3) For the purposes of this subpart –

(i) Independent educational evaluation means an evaluation conducted by a qualified examiner who is not employed by the public agency responsible for the education of the child in question; and

(ii) Public expense means that the public agency either pays for the full cost of the evaluation or ensures that the evaluation is otherwise provided at no cost to the parent , consistent with §300.13. Emphasis added.

Therefore, federal regulation 34 CFR 300.502(a)(3)(i) is concerned with the IEE examiners’ qualifications just as is 603 CMR 28.04(5)(a). Further, 34 CFR 300.502(a) (3)(ii) provides that the school either pays the full cost of the IEE or ensures that the IEE is provided to parents at no cost . I find that 603 CMR 28.04(5)(a) is consistent with 34 CFR 300.502(3)(a)(ii). 603 CMR 28.04(5)(a) simply defines, with more precision, what specific measures are to be used to ensure appropriate qualifications for the IEE examiners, as well as comprehensive provisions for a public payment system, via MDHCFP, for those qualified evaluators to be appropriately reimbursed at RSR; that assures that public agencies will not be forced to pay exorbitant IEE costs; and which gives public schools notice regarding what the maximum costs will be for specific evaluations, thereby giving public schools some certainty in their fiscal/financial cost planning. Consistent with 34 CFR 300.502(a)(3)(ii), 603 CMR 28.04(5)(a) ensures that Parents certainly can receive IEEs at no cost. In this case, if Parents had selected evaluators who accepted RSR, they would have incurred no costs.1 Therefore, for the speech/language evaluation and the educational evaluation it is crystal clear that Parents are only entitled to the RSR.

With regard to the neuropsychological evaluation and the central auditory processing evaluation the situation is not as clear. MPS initially agreed to an independent psychological evaluation (which MPS had originally done), not the neuropsychological evaluation Parents wanted. It is admitted MPS never did agree to the central auditory processing evaluation (which MPS had not done). Thus, both the neuropsychological evaluation and the central auditory processing evaluation were in areas not assessed by MPS. (See 603 CMR 28.04(5)(d) cited above along with 603 CMR 28.04(5)(a).

At a resolution meeting on November 17, 2008 MPS agreed to reimburse Parents at the RSR for all of their private evaluations, which was rejected by Parents. However, by this point, 9+ months after the IEE request, Parents had incurred full costs i.e., beyond RSR for the neuropsychological evaluation and the central auditory processing evaluation; and MPS had never requested a hearing pursuant to 603 CMR 28.04(5)(d) or 34 CFR 300.502(b)(2)(i) & (ii).2

Based upon the above analysis, MPS’ MTD is GRANTED regarding 1) the speech-language evaluation and 2) the educational evaluation. MPS’ MTD is DENIED regarding 3) the neuropsychological evaluation and 4) the central auditory processing evaluation.

A PHCC is scheduled for March 11, 2009 at 4:00 p.m. to discuss further proceedings in this case.

By the Hearing Officer Dated: March 5, 2009

_______________________________

Raymond Oliver


1

I take administrative notice that virtually all of the major teaching hospitals in Massachusetts accept RSR. See also affidavit of Ms. Shea.


2

See also 14 MSER 127 (2008) – BSEA# 08-4873, Figueroa, H.O., which dealt with similar facts regarding different IEEs and RSR.


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