COMMONWEALTH OF MASSACHUSETTS
BUREAU OF SPECIAL EDUCATION APPEALS
In Re: Mendon-Upton Regional School District
BSEA # 07 -3716
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 April 12, 2007 before William Crane, Hearing Officer. Because Student and his parents currently reside in Florida, the hearing was held by telephone by agreement of the parties. Those participating in all or part of the hearing were:
Student
Student’s Mother
Shirley Taylor Director of Pupil Personnel Services, Mendon-Upton RSD
Alisia St. Florian Attorney for Mendon-Upton RSD
The official record of the hearing consists of documents submitted by Student’s mother (Parent) and marked as exhibits P-1 through P-16; documents submitted by the Mendon-Upton Regional School District (Mendon-Upton) and marked as exhibits S-1 through S-9; and approximately one and one-half hours of recorded oral testimony and argument. Oral closing arguments were made at the end of the hearing on April 12, 2007, and the record closed on that date.
ISSUE
The issue in dispute is whether Mendon-Upton is responsible for payment for an independent speech-language evaluation conducted by Dr. Maura Marks.
BACKGROUND
The following facts are not in dispute.
Student is a special education student who attended Mendon-Upton public schools until he was withdrawn in December 2005. Student and his Parents moved to Florida where they currently reside. Testimony of Parent, Taylor.
By letter dated June 16, 2005, the Mendon-Upton Pupil Personnel Services Director (Shirley Taylor) wrote Parent that Mendon-Upton was in receipt of Parent’s request to fund an independent educational evaluation for Student. Ms. Taylor’s letter continued:
The Mendon-Upton Schools does authorize a neuropsychological evaluation by a licensed and credentialed individual or agency which agrees to abide by rate setting fees. This may include assessment of reading, cognition, personality function, executive function, social and emotional function, and medical/neurological function and any other assessment that is agreed to in writing by us. [Exhibits P-3, S-4.]
By letter dated August 10, 2005, Ms. Taylor wrote again to Parent, stating in relevant part:
You have requested that [Student] have an independent evaluation completed. As we stated before, you are free to choose an evaluator. Our condition is that it must be a licensed evaluator who is willing to accept the rate setting amounts approved by the state. [Exhibits P-10, S-6.]
Parent engaged Maura G. Marks, PhD, CCC-SLP/A, to conduct a speech-language evaluation of her son. Dr. Marks is employed at SLP Associates, PC, located in Medfield, Massachusetts. Dr. Marks issued a Speech and Language Evaluation Report in December 2005. Testimony of Parent; exhibits P-12, S-2.
SLP Associates sent Parents, who by then had moved to Florida, an Account Statement, dated October 13, 2006, indicating that SLP Associates had been unable to collect its fee of $635.00 from Mendon-Upton and advising Parents that they were “ultimately responsible for payment for the evaluation and report that you received.” Testimony of Parent; exhibits P-12, S-2.
Parents did not pay the fee, and it was referred to a collection agency. After receiving notice from the collection agency, Parent initiated these proceedings before the Bureau of Special Education Appeals (BSEA), seeking payment by Mendon-Upton.
DISCUSSION
Student is an individual with a disability, falling within the purview of the Individuals with Disabilities Education Act (IDEA)1 and the state special education statute.2 The IDEA was enacted “to ensure that all children with disabilities have available to them a free appropriate public education [FAPE] that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living.”3 The Supreme Court has held that in order to satisfy its duty to provide FAPE, a school district must provide “personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction.”4 Neither Student’s eligibility status nor his entitlement to FAPE is in dispute.
The only issue to be resolved in the present dispute is whether Mendon-Upton must pay for the independent speech-language evaluation obtained by Parent. Parent has the burden of persuasion regarding this issue.5
As a general rule, the Massachusetts and federal special education regulations envision a process pursuant to which a parent may disagree with a school district’s evaluation(s), and then seek to obtain an additional or “independent” evaluation at public expense .6 Pursuant to these regulations, a school district may be required to pay for such an evaluation if certain income eligibility standards are met or if the BSEA determines that the school district’s evaluation was not comprehensive and appropriate.7
Parent does not make a claim pursuant to these regulatory standards. Instead, Parent’s case rests on the argument that Mendon-Upton agreed to pay for the speech-language evaluation. Were I to find that Mendon-Upton and Parent agreed that Mendon-Upton would fund the speech-language evaluation, Mendon-Upton would be responsible to pay for it.8
Mendon-Upton’s only authorization for payment of an independent evaluation is Ms. Taylor’s letter to Parent dated June 16, 2005, which makes clear that the authorization is limited to a neuropsychological evaluation. The letter provides that any other assessment must be agreed, in writing, by Mendon-Upton. Exhibits P-3, S-4.
The only written evidence provided by Parent, which is arguably relevant to an agreement to pay for an independent speech-language evaluation, is Ms. Taylor’s August 10, 2005 letter to Parent. This letter includes the statement that Parent was “free to choose an evaluator” so long as the evaluator was licensed and willing to accept state reimbursement rates. The letter did not refer, specifically, to a neuropsychological (or any other particular type of) evaluation. Arguably, Parent understood this letter to mean that she could choose a speech-language evaluator, and that Mendon-Upton would then pay for the speech-language evaluation. Exhibits P-10, S-6.
Taken out of context, the above-quoted phrase from Ms. Taylor’s August 10 th letter supports Parent’s claim. However, when the letter is read in its entirety, together with the June 16 th letter authorizing the neuropsychological evaluation, it becomes apparent that the quoted phrase in the August 10 th letter was only for the purpose of clarifying what was contained within the earlier letter – that is, that Parent could choose any evaluator who was licensed and accepted state reimbursement rates for purposes of conducting the neuropsychological evaluation that Mendon-Upton had previously approved. There is nothing within the August 10 th letter nor is there anything within any other document in the record that indicates either that Parent requested prior authorization from Mendon-Upton for payment of a speech-language evaluation or that Mendon-Upton approved payment for such an evaluation.
Nor is there any credible evidence that there was an oral agreement to fund the speech-language evaluation. In her position as Director of Pupil Personnel Services, Ms. Taylor approves the payment of independent evaluations. Ms. Taylor credibly testified that she had no knowledge of Parent’s seeking or obtaining a speech-language evaluation until Mendon-Upton received a bill from SLP Associates for the then completed evaluation by Dr. Marks.
Through her own testimony and that of her son, Parent was persuasive that she spent time and energy seeking to have Mendon-Upton provide appropriate special education services and evaluations for her son. However, neither Parent nor her son pointed to any particular discussion, meeting, or other conversation during which Parent requested, or Mendon-Upton agreed to pay for, a speech-language evaluation.
I also note that at the time that Dr. Marks completed her speech-language evaluation, there had not been a recent speech-language evaluation by Mendon-Upton. Had Parent made a prior request to Ms. Taylor to authorize payment for an independent speech-language evaluation, Ms. Taylor would have followed Mendon-Upton’s customary procedure of conducting its own speech-language evaluation prior to considering any request by Parent for an independent speech-language evaluation. Testimony of Taylor.9
In conclusion, Parent has not met her burden of persuasion that Mendon-Upton agreed to pay for an independent speech-language evaluation. Parent provided no other basis upon which she would be entitled to relief.
ORDER
Mendon-Upton is not responsible for payment for the independent speech-language evaluation conducted by Dr. Maura Marks.
By the Hearing Officer,
William Crane
Dated: April 17, 2007
COMMONWEALTH OF MASSACHUSETTS
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
20 USC 1400 et seq . Congress reauthorized and amended the IDEA in 2004, with changes to take effect on July 1, 2005. Unless otherwise indicated, references in this Decision to the IDEA are to IDEA 2004.
2
MGL c. 71B.
3
20 USC 1400(d)(1)(A). See also 20 USC 1412(a)(1)(A); MGL c. 71B, ss. 2, 3.
4
Bd. of Educ. of the Hendrick Hudson Central Sch. Dist. v. Rowley, 458 U.S. 176, 203 (1982).
5
Schaffer v. Weast , 546 U.S. 49, 126 S. Ct. 528, 537 (2005) (burden of persuasion is placed upon the party seeking relief).
6
34 CFR 300.502(b); 603 CMR 28.04(5).
7
34 CFR 300.502(b)(2); 603 CMR 28.04(5)(d).
8
There is ample support within federal case law for the proposition that a BSEA Hearing Officer may consider an agreement between Mendon-Upton and Parent regarding this issue. See In Re: Needham , BSEA # 07-2282, 107 LRP 17975, footnotes 29 and 30, and accompanying text (MA SEA 3/6/07) (collecting authorities and explaining that every federal court that has considered the issue has concluded that a hearing officer may consider an agreement between the parties when determining the rights of parents and the responsibilities of school districts in a special education dispute).
9
The procedure that would have been used by Mendon-Upton is consistent with special education regulations .
See, e.g., In Re: Mansfield Public Schools , BSEA # 05-4247, 11 MSER 110 (MA SEA 6/27/05) (summary judgment ruling) ( pursuant to Massachusetts special education regulations, parent’s request for a publicly-funded independent evaluation must reflect a disagreement with a prior evaluation of the school district).