COMMONWEALTH OF MASSACHUSETTS
DIVISION OF ADMINISTRATIVE LAW APPEALS
BUREAU OF SPECIAL EDUCATION APPEALS
IN RE : Nelson1 & Taunton Public Schools
BSEA #10-8142
DECISION
This Decision is issued pursuant to M.G.L.c.71B and 30A, 20 U.S.C.§1401 et seq , 29 U.S.C. §794 and the regulations promulgated under those statutes. A hearing was held in the above-entitled matter on June 26 and 27, 2011 at the Department of Elementary and Secondary Education in Malden, MA. Present for all or part of the proceeding were:
Ms. N. Parent
Tami Joia Parent Advocate
Michael Novick Director, High School Programs, South Coast Collaborative
Ralph Friedman Out of District Coordinator, Taunton Public Schools
(by telephone)
Marguerite Mitchell Attorney, Taunton Public Schools
Lindsay Byrne Hearing Officer, BSEA
The Parent was represented by an advocate. Once Student reached the age of 18, he delegated his interests to his Parent by way of a comprehensive Power of Attorney. The School was represented by a lawyer. The official record of the hearing is comprised of exhibits accepted into evidence on January 6, 2011 (P-1, P-2, P-2A-P-2L, P-3, P-3A-P-3L, P-4, P-4M-P-40, P-5, P-6, P-6P, P-7, P-7Q, P-7R, P-8, P-8S, P-8T, P-9, P-10, P-10U, P-12, P-12N-P-12W and P-13; S-1 through S-64; HO-1) and approximately 12 hours of recorded oral testimony and argument. The Parties submitted written closing arguments on August 16, 2011 and the record closed on that date.
ISSUES :
1) Whether the Taunton Public Schools appropriately responded to the Parent’s December 4, 2009 Request for a Transitional Services Assessment: and
2) If not, whether the Student was deprived of a free, appropriate public education as a result?
SUMMARY OF THE EVIDENCE :
1. Nelson is a now 18 year old high school eligible special education student. At all times relevant to this Decision, Nelson was16 or 17 years old. In March 2009 when Nelson was 15, the Team developed an IEP calling for his continued placement at the Clifford Day School at Longview Farm. The proposed IEP provided for targeted special education services to address Nelson’s demonstrated needs in the areas of social/emotional skills, behavioral skills, English language arts and mathematics skills. The IEP provided for extended year services. The IEP contains a Transition Planning Form setting out Nelson’s disability-related goals for post secondary education life, and the services to be provided to move toward those goals. On March 20, 2009 the Parent partially accepted the proposed proposed March 2009-March 2010 IEP. She wrote:
“[Rejected portions are as follows] Placement. [Student] is in dire dire need of a residential placement. I accept the services on [Student]’s IEP but reject day placement and request a hearing for residential placement.”2 (P-8T, S-1)
2. During the fall 2009, Nelson was placed in DYS supervision. His conditions of probation included full time attendance at the JRC day program and after care program, an electronic monitoring device (ankle bracelet), and a 5:00 p.m. curfew. The term of probation was October 19, 2009 to March 4, 2010. (P-9; Parent; Friedman)
3. On December 4, 2009, Taunton received a 2 page fax from the Parent. One page contained a handwritten request for a Team meeting to discuss a court evaluation. The second page was a typed letter from the Parent’s advocate requesting a “transitional assessment”. (P-1, S-3, S-4.3 See also P2A, S-5, S-6.)
4. On December 7, 2009, Ralph Friedman, Taunton’s Out-of-District Coordinator and liaison, replied to Parent. He acknowledged receipt of her requests for a Team meeting and a transitional assessment.4 He included an Evaluation Consent Form, dated 12/7/09, listing two transition assessments to be completed by Taunton: the career decision maker and the career exploration inventory.(S-7) The parent never signed this proffered consent form. (Parent, Friedman)
5. The Parent sent a fax to Taunton on December 11, 2009. The Parent referred to her advocate’s December 4, 2009 request for a transitional evaluation but did not respond to Taunton’s request for consent to conduct transitional assessment. (P-2B, S-8, S-9)
6. On December 16, 2009, Taunton received back from the Parent the Evaluation Consent Form it had sent to her on December 7, 2009. The box next to “assessments listed above” was checked. A handwritten note: “Please refer to consent to Transitional Assessment signed previously” was added. The form was not signed and not dated. No previous consent form was supplied to Taunton at that time. (P-2B, S-8, S-9, S-10) None appears in the record.
7. On December 16, 2009, Taunton also received a “Parent’s Request for Transitional Assessment” listing the areas in which the Parent sought evaluations: functional community living skills; daily living skills; functional vocational assessment and other (not specified). The Parent’s Request has the Parent’s signature and a handwritten date of December 4, 2009. It is referred to throughout the Hearing as the Parent’s checklist. (P-2B, S-10)
8. On December 17, 2009, Taunton replied to the Parent’s Request for Transitional Assessment checklist alerting her that Taunton sought the assistance of the South Coast Collaborative in performing the transitional functional vocational evaluation, and of the JRC program that Nelson then attended in evaluating Nelson’s functional community and daily living skills through the PAYA program. Taunton enclosed two additional Evaluation Consent Forms dated 12/17/09. One requested the parent’s consent to a transitional assessment and an on-line vocational assessment to be performed by South Coast Collaborative; one requested the parent’s consent to access information generated by Nelson’s participating in the PAYA program at JRC. It also requested her permission to allow Nelson to access the internet at the JRC program so that South Coast could conduct the on-line portion of the vocational assessment with Nelson at the JRC program. (P-3, P-4M, N; S-11) The parent never responded on the proffered consent forms and did not provide written consent to any of the transitional assessment components listed on these consent forms. (Parent; Friedman)
9. The Parent testified that she refused to consent to any evaluation to be conducted by or in the JRC program because it was not an approved special education program. (Parent) By letter of January 7, 2010, the Parent’s advocate confirmed the Parent’s unwillingness to have any portion of the proposed transitional evaluation occur at or by the JRC program. (P-2C, S-12, S-13)
10. On January 13, 2010, in response to the Parent’s reluctance to include Nelson’s then placement at the JRC in the transitional planning process, Taunton wrote to the Parent alerting her that the requested transitional vocational evaluation could be conducted by South Coast Collaborative at one of its facilities. Taunton offered to provide round trip transportation for Nelson between the JRC program and the Collaborative site. Taunton enclosed a Release of Information Form to permit South Coast Collaborative to view Nelson’s school records and speak with both Taunton and JRC about Nelson. The Release of Information form was never signed by the Parent. (P-3B, S-14; Parent; Friedman)
11. On January 19, 2010, the Parent faxed a 3 page document to Mr. Friedman. The Parent stated:
Please be advised Southeast Collaborative Evaluator needs to schedule appointment with myself and advocate to discuss evaluation and all technically sound instruments used as well as PAYA testing to be discussed. I want to know what is being done and why, how, etc. This evaluation would need to be done at Westwood Lodge. Please have evaluator call to set up appointment or conference call.
The Parent included a two page undated handwritten letter referring to a phone conversation with Mr. Friedman on January 15, 2010. In the letter the Parent asks Taunton to send a certified special education tutor/teacher to Westwood Hospital for Nelson. (P-2E, S-18)
12. On January 20, 2010, the Parent faxed a 7 page document to “Mr. Leonard” at Taunton Public Schools. The document included a handwritten, signed statement: “I will not agree to any more testing.” And later in the same handwriting: “the only testing to be done is transitional assessment.”
The document also included the handwritten, undated letter from the Parent to Mr. Friedman requesting Taunton to send a tutor to Westwood Hospital for Nelson. (P-2F, S-17)
13. On January 21, 2010, Taunton mailed the Parent a Release of Information consent form to permit the exchange of Student information between Taunton Public Schools and Westwood Lodge. The form was never signed by the Parent. (S-19; Friedman; see also S-20, P-3A)
14. On January 26, 2010, Taunton asked South Coast Collaborative to postpone the “transition/vocation evaluation” previously planned for January 27, 2010 as Taunton had not received consent from the Parent and the Student was then in the hospital. (Friedman, P-3C, S-21)
15. The Parent’s advocate notified Taunton on February 1, 2010 that Nelson had been released from DYS custody and could begin attending the day program at Longview Farm under the IEP accepted for the 2009-2010 school year.5 The Parent signed a Release of Information consent form on January 29, 2010 permitting Taunton to release Nelson’s school records to the Clifford School/Longview Farm. The Parent specifically prohibited Taunton from talking to or releasing any Student information to DYS or Probation. (P-10, S-24)
16. Immediately upon being notified of Nelson’s release from DYS and consequent expanded availability, Taunton asked South Coast Collaborative to attempt to conduct the transitional/vocational evaluation within 2 days. Taunton included a copy of the Parent’s checklist with its request to South Coast Collaborative. (P-3E, S-25; Friedman; Novick)
17. Michael Novick, Level Director for High School Programs at South Coast Collaborative, testified that he attempted to schedule the proposed evaluation with the Parent and with the Parent’s advocate but was unsuccessful. In February and March 2010 he spoke with someone who identified herself as a relative, with the Parent, and with the Parent and the advocate together. He also exchanged substantive phone messages with the Parent’s advocate concerning the proposed evaluation. Mr. Novick did not receive a parental consent to conduct the evaluation in February or early March 2010. (Novick; P-3G, S-28) On March 10, 2010 the Parent’s advocate wrote to Mr. Novick enclosing a blank, unsigned “Parent’s Request for Transitional Assessment” (Parent’s checklist). (P-2G; S-31)
18. Mr. Novick explained that he has conducted transitional vocational evaluations for South Coast Collaborative since 1984. The transitional vocational evaluations are different than typical special education evaluations which concentrate on a particular domain at a particular time. The component assessments of a transitional vocational evaluation are cyclical, completed over time and in a variety of settings, with set of individualized challenges, training and learning objectives, responses, planning, and re-assessments. A good transitional vocational evaluation includes formal and informal testing in the areas of aptitude, behavior, skills and interests in both situational and simulated work environments. There are multiple meetings during the assessment period to determine an area of interest for the student, arrange for an internship, develop learning goals consistent with the Massachusetts workforce learning program, assess progress, re-work goals, and re-assess. A typical evaluation takes place over the course of twelve weeks for a South Coast Collaborative student. (Novick)
Mr. Novick testified that because the transitional vocational evaluation is tied to community settings, it is difficult to conduct a standard one for a student who has limited community access. In that case the evaluation would start with an exploration of the student’s skills and interests using an on-line career inventory tool such as Career Cruising and an observation of the student wherever he was located. After collecting that initial information further individualized planning and assessment would be necessary. (Novick; S-32; P-3H, S-33)
19. Mr. Novick testified that South Coast Collaborative could not conduct a transitional vocational evaluation without the Parent’s, or the adult Student’s, written consent. In addition, the Collaborative required a release of information to permit exchange of information between the referring school district and the Collaborative, and between the Student’s placement and the Collaborative, prior to beginning the evaluation. (Novick)
20. On March 16, 2010, Taunton advised the Parent of the South Coast Collaborative consent requirements and enclosed an individualized consent form. Taunton wrote that as soon as the Parent’s written consent was received the transitional vocational evaluation would be scheduled to take place at Longview Farm. (P-3H, S-33, P-3I, S-36; Friedman) Up to that point no written parental consent to the proposed transitional vocational evaluation had been obtained by Taunton.
21. A Team meeting was held on March 18, 2010 at Longview Farm. The Team was notified that Nelson had been hospitalized since March 15, 2010 and was unable to attend the meeting. At the meeting the Parent produced an “Authorization Form for Exchange of Information” limiting Taunton’s release of information to Longview Farm to “only report cards of academic progress only unless particular permission of parent is granted” which was purportedly signed by her on February 8, 2009. (P-5, S-26) The Parent also signed the individualized consent form permitting South Coast Collaborative to conduct the proposed Transitional/Vocational Evaluation and authorizing associated communications with Longview Farm. The Parent dated the completed consent form March 19, 2010. (P-4, S-38)
22. On March 24, 2010, Taunton proposed an IEP covering the period March 18, 2010 to March 17, 2011calling for an extended year residential special education program. The Team indicated that as soon as he was discharged from Norwood Hospital, Nelson could transition into the residential program from the day program at the Clifford School/Longview Farm, his then current placement. The Parent stated that Nelson no longer wished to participate in any Longview Farm program and requested an alternate residential placement. Taunton agreed to send referral packets to other appropriate residential schools once the IEP was accepted by the Parent. The Parent accepted the 2010-2011 IEP on April 5, 2010. Taunton sent referral packets to two additional residential special education programs on April 6, 2010. (P-8, S-2; P- 3J, S-46; Friedman)
23. The accepted 2010-2011 IEP contained a completed Transition Planning Form and Action Plan. (P-8S, S-2)
24. On March 19, 2010, Taunton forwarded the Parent’s written consent to evaluate to South Coast Collaborative and requested that the Collaborative make arrangements to conduct the evaluation directly with Longview Farm staff. (S-39)
25. In a letter to Longview Farm and Taunton dated March 21, 2010 the Parent requested that South Coast Collaborative conduct the transitional vocational evaluation at Norwood Hospital. (P-3J, S-41)
26. On March 23, 2010, Parent supplied the telephone number of the Norwood Hospital social worker to Taunton in order to facilitate scheduling the evaluation on the psychiatric unit at the hospital. (S-42) South Coast Collaborative was unable to reach the hospital social worker at the phone number supplied by the Parent. (S-43, Novick) Taunton tracked down the correct phone number and forwarded it to South Coast Collaborative on March 29, 2010. (S-44) On April 1, 2010 South Coast Collaborative arranged with Norwood Hospital to begin Nelson’s evaluation on April 14, 2010. (S-45) On April 5, 2010 the Parent informed Taunton that Nelson had been discharged from Norwood Hospital. Taunton immediately alerted South Coast Collaborative that the scheduled April 14, 2010 evaluation could be conducted at a Collaborative site instead. By letter dated April 6, 2010 Taunton confirmed the location of the evaluation and offered to provide round trip transportation. (P-3J, S-46; see also S-47, S-48; Novick; Friedman)
27. The initial component of the transitional vocational evaluation took place on April 14, 2010 at the Collaborative site. Nelson completed an on-line vocational exploratory tool, Career Cruising, which is accepted as a formal assessment by the National Secondary Transition Technical Assistance Center. Taunton forwarded the assessment results to the Parent on April 27, 2010 and scheduled a Team meeting to discuss the evaluation, among other things, for May 12, 2010. (P-12, N, O, P, U, S-49; P-3K, S-50, P-6P, S-51); Novick, Friedman)
28. Mr. Novick testified that the ideal assessment protocol was not implemented for Nelson due to the limited access evaluators had to him and to Nelson’s lack of community involvement. Nevertheless, according to Mr. Novick, the Career Cruising inventory was an appropriate starting place and yielded sufficient information to permit South Coast Collaborative to make informed recommendations for the reasonable next steps in the assessment process. For example, Mr. Novick testified, Nelson’s interest in the music production could be tapped in one of two possible vocational internship placements at local recording studios. Mr. Novick had intended to discuss these possibilities at the Team meeting until the advocate and Parent became disruptive and left the meeting. (Novick)
29. After his discharge from Norwood Hospital Nelson remained at home. Taunton offered to place Nelson in the residential program at Longview Farm, to continue his day placement at Longview Farm under the then accepted IEP, or to provide home tutoring. The Parent refused both Longview Farm placement options. She requested home tutoring until an appropriate residential placement could be identified. There is no physician statement of necessity for a home education program in the record.6 (Friedman; P-3J, S-46) Taunton arranged for Nelson to be tutored at home. Though the tutor was available, Nelson’s participation and attendance were problematic. (S-54; P-13, S-55; P-3L, S-56; P-13, S-57; S-58; S- 59; S-60; S-61; S-62; S-63; S-64)
30. On May 12, 2010 the Team convened to discuss the results of the South Coast Collaborative initial transitional vocational evaluation. By all accounts it was an unsuccessful meeting. Mr. Novick testified that he was prepared to discuss the results of Nelson’s career interest inventory, to recommend services to further explore and assess his transitional needs and to arrange community based internships to build up and upon Nelson’s skills. That discussion did not occur due to the disruptive behavior of the Parent and her advocate. The Team meeting was terminated by the Parent without an action plan. (Novick; see also Friedman; P-7R, S-52; note in particular P-2K.)
31. Taunton sent an NI form to the Parent on May 12, 2010. The Form summarized the events of the Team meeting and indicated that the Team would reconvene to further discuss transitional evaluations as well as residential educational placement. (S-52; Friedman)
32. Mr. Friedman testified that he informed the Parent and her advocate on several occasions of her right to obtain an independent transitional evaluation at public expense. She declined to do so. (Friedman; Parent)
33. The Parent moved to a different school district at the end of June 2010. Nelson was committed to DYS custody on July 14, 2010. (Parent)
LEGAL FRAMEWORK
The burden of persuasion in an administrative special education hearing is on the party seeking relief. Schaffer v. Weast , 546 US 49, 62 (2005). For claims of procedural due process violations, such as those raised by the Parent here, the burden of persuasion is on the moving party. To obtain relief for a procedural violation of IDEA 2004, Parents must prove two separate elements – first that a violation occurred, and second, that the resulting procedural inadequacies “compromised the pupil’s rights to an appropriate education…or caused a deprivation of educational benefits.” Roland M. v. Concord Public Schools , 910 F.2d at 994 (1st Cir. 1990); See also: Murphy v. Timberland Regional Sch. Dis. , 22 F.3d 1186 1196 (1st Cir. 1994). Therefore the burden of producing persuasive evidence of both the alleged violation and the resulting harm to the Student lies with the Parent, the moving party in this matter.
It is also important to note that accepted, expired IEPs are not typically subject to administrative challenge using special education appeals procedures, especially where parents have not rejected the IEP during the term of the IEP. Chris A. v. Stow Public Schools 16 EHLR 1304 (MA 1990), affirmed on appeal Amann v. Stow School System 982 F.2d 644 at 651 (1992). Similarly, a parent is not entitled to relief for procedural errors when the parent has fully accepted an IEP even if procedural errors were committed in its development. In this matter, both IEPs governing Nelson’s special education service delivery during the time the dispute arose were accepted. Thus any parental claim that alleged procedural errors contributed to substantively inappropriate IEPs for Nelson during the terms of the 2009-2010 or 2010-2011 IEPs is highly disfavored.
The fundamental issue presented in this matter involves conflicting interpretations of the parental consent provisions of state and federal special education law. The Parent argues that the signature on her “Request for a Transitional Evaluation” (Parent checklist) indicates her consent to permit the school district to conduct an evaluation of the scope and nature set out in her request, and triggers the procedural protections afforded to the Student and Parent under IDEA 2004 and M.GL. c71B. The School asserts that the Parent’s request for an evaluation starts a procedural ballet in which the School district must first acknowledge receipt of the Parent’s evaluation request, then issue a formal written notice to the Parent describing how the school will address the Parent’s request and , at the same time, request the parent’s written consent to the measures described in the notice. The School contends that it is not permitted to act on a parent’s request for an evaluation until, and unless, the parent consents in writing to the type of evaluation tools and areas of inquiry the school actually proposes. Both federal and state law squarely address the issue raised by the Parent.
First it is helpful to review how federal and state law define “consent” in the context of special education procedural protections. When the term “consent” is used in IDEA 2004 or in its implementing regulations, it has the same meaning as the term “informed written consent”. 34 CFR §300.9 states:
Consent means that –
(a) The parent has been fully informed of all information relevant to the activity for which consent is sought, in his or her native language, or through another mode of communication.
(b) The parent understands and agrees in writing to the carrying out of the activity for which his or her consent is sought, and the consent describes that activity and lists the records (if any) that will be released and to whom; and
(c)(1) The parent understands that the granting of consent is voluntary on the part of the parent and may be revoked at any time.
(2) If a parent revokes consent, that revocation is not retroactive (i.e., it does not negate an action that has occurred after the consent was given and before the consent was revoked.)7
Similarly, Massachusetts special education regulations provide:
Consent shall mean agreement by a parent who has been fully informed of all information relevant to the activity for which consent is sought, in his/her native language or other mode of communication, 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. The consent describes the activity and lists the records (if any) that will be released and to whom.
603 CMR 28.02 4)8
Under IDEA 2004, a parent’s consent is required before a school district may conduct an evaluation of a student (34 CFR 300.300 (a)9 ), before providing special education and related services to the student (34 CFR 300.300 (b)) and before inviting representatives of other agencies to participate in a team meeting in which a student’s transitional needs will be discussed (34 CFR 300.321 (b)(3).) IDEA 2004 permits a state to require parental consent for other special education related services and activities so long as the consent requirement does not cause an eligible student to forfeit a free appropriate public education (20 U.S.C. 1414 (c)(2).)
Mirroring the federal law, Massachusetts requires a parent’s written consent prior to any school conducted or sponsored evaluation of a child, 603 CMR 28.04 (1) and (2), 603 CMR 28.04 (3), 603 CMR 28.05 (1), 603 CMR 28.05 (2)(b)10 prior to providing or changing special education services or placement, prior to inviting non-school district personnel to a student’s Team meeting and prior to excusing a Team member(s)’s attendance at the student’s Team meeting.
Indeed as a measure of how seriously Massachusetts views parental participation in and agreement with special education, references to parental consent requirements appear both as language embedded in numerous content and procedural provisions (see, eg. FN 10 supra) and as a separate, set off, section in the regulations:
28.07 PARENT INVOLVEMENT
(1) Parental consent. In accordance with state and federal law, each school district shall obtain informed parent consent as follows; (a) The school district shall obtain written parental consent before conducting an initial evaluation or making an initial placement of a student in a special education program under 603 CMR 28.00 Written parental consent shall be obtained before conducting a reevaluation and before placing a student in a special education placement subsequent to the initial placement in special education.
603 CMR 28.07 (1)
Whenever a Massachusetts student is referred for a special education evaluation, and at least annually if the student is receiving special education services, the parent is provided with a summary of the regulations concerning parental consent.11
In construing and applying statutes and regulations the words and phrases used must be given their ordinary meanings unless to do so “would lead to an absurd result or one contrary to the Legislature’s manifest intention.” Digregorio v. Registry of Motor Vehicles , 78 Mass App. Ct. 776, 780, 782 (2011). The Parent did not argue that the plain language of the pertinent statutes and regulations, or its application here, misrepresented the intent of the Congress or of the Massachusetts General Court.
FINDINGS AND CONCLUSIONS :
There is no dispute that Nelson is a student with special learning needs as defined by M.G.L. c71B and 20 U.S.C. §1401 et seq and is thus entitled to receive a free appropriate public education. The issue presented here is limited to determining whether Taunton appropriately discharged its obligations to respond to the Parent’s request to evaluate Nelson’s transitional needs. After careful consideration of all the evidence presented at the hearing, and of the arguments of the Parent’s advocate and Taunton’s counsel, I find that the clear and substantial weight of the evidence supports the conclusion that Taunton has met the procedural requirements imposed by IDEA 2004 and M.G.L. c71B concerning administration of transitional evaluations and services to Nelson. The plain language of the applicable statutory and regulatory provisions compels this result. There is furthermore no credible evidence to the contrary. The Parent has not carried her burden of showing any improper action or inaction on Taunton’s part that might be characterized as a special education procedural violation, or that might have been compromised Nelson’s entitlement to a free appropriate public education. My reasoning follows:
The issue here is extremely circumscribed. While transition services are one component of the special education regulated by IDEA 2004 to which Nelson is indisputably entitled (20 U.S.C.§1401 (34) there is no viable contention that Taunton failed to properly plan for Nelson’s transition to post high school life. There was a transitional planning form and action plan developed as part of the 2009-2010 IEP. The transitional planning and services component of that IEP was accepted by the Parent. The acceptance was not withdrawn during the term of the IEP. (P-85, S-1). There was a transitional planning form and action plan component of the 2010-2011 IEP. That IEP, developed during the timeframe at issue in this hearing, was fully accepted by the Parent. (P-8, S-2) Furthermore, there was no showing of any substantive educational consequence to Nelson resulting from or connected to the accepted transitional planning component of his 2009-2010 or 2010-2011 IEPs. The Parent’s clam involves only whether Taunton timely and appropriately responded to her request for evaluation in line with the obligations imposed upon it under federal and state law.
In Massachusetts the process for initiating a publicly funded evaluation of a child for the purpose of determining eligibility for, changing or terminating special education services, combines the procedural protections of federal and state special education law. First a “referral”12 is made to the school district responsible for the child. Next, within 5 school days of receipt of that referral, the school district must notify the Parent in writing of its receipt of the referral and the type of evaluation procedure or testing the school district proposes to use and/or the records it intends to review. This is the “prior written notice” component of the evaluation procedure. The school district must then obtain the Parent’s written consent to the procedures set out in the “prior written notice”. Only after that written parental consent is obtained may the school district conduct an evaluation of the child. (See discussion @ ¶.10-15 supra. )
In this matter, Taunton received a request for a “transitional evaluation” from the Parent’s advocate on December 4, 2009. On December 7, 2009 Taunton proposed conducting two assessments as part of a transitional evaluation and requested the Parent’s consent to move forward. (¶ 4, 5) This uncontroverted evidence supports the finding that Taunton met its obligation to notify the Parent in writing within five school days of its response to the “referral” for evaluation. It also met its obligation to seek her written consent to the evaluations it proposed to conduct within 5 school days of receipt of the “referral”.
On December 16, 2009 Taunton received a document titled “Parent’s Request for Transitional Assessment” (Parent’s checklist). On December 17, 2009 Taunton responded in writing to the Parent. Taunton advised the Parent that it proposed that a Collaborative with expertise in conducting transitional evaluations perform the types of assessment requested by the Parent: a transitional, functional vocational evaluation. As Nelson was then in DYS custody and placement, Taunton also proposed obtaining relevant transitional functional skills information from his DYS curriculum and service providers. Taunton requested the Parent’s written permission to perform both components of the transitional evaluation. With this response Taunton met its statutory and regulatory obligation to respond to the Parent’s request/referral for evaluation within five days by giving her “prior written notice” of its intent to conduct the type of evaluation she requested, telling her how and who would be responsible for performing the evaluation, and seeking her written consent to conduct the evaluation. (See ¶ 8, 9; 34 CFR 300.300 (a); 603 CMR 28.04). Taunton’s response not only complies with the regulatory language, it was reasonable and creatively proactive given Nelson’s placement circumstances at that time.
The Parent did not return the consent forms sent to her by Taunton in December 2009. The Parent did not indicate in writing at any other time her consent to the evaluations proposed by Taunton in December 2009. Taunton could not, consistent with federal and state law, conduct any part of the “transitional evaluation” requested by the Parent or the Parent’s advocate, without the Parent’s written consent. (¶15, Novick, Friedman) Taunton therefore acted properly in both outlining the elements of a proposed evaluation and in declining to conduct it until it received written consent signed by the Parent.13
Consistent with its obligation to work with parents to ensure that students with disabilities actually receive a free appropriate public education, Taunton continued to seek the Parent’s consent to conduct the transitional evaluation. Taunton sent the Parent additional consent and release forms, had several telephone conversations with the Parent, and arranged for the proposed evaluator to discuss the evaluation with the Parent. (See ¶ 11, 12, 13, 15, 17, 19, 20.) None of these measures was successful in eliciting the Parent’s consent to the evaluation she had requested.14
On March 19, 2010 after a Team meeting, the Parent signed and dated written permission for South Coast Collaborative to conduct the initial component of the transitional evaluation. After initial difficulty locating Nelson based on information supplied by the Parent, South Coast completed the on-line portion of the evaluation. A Team meeting was scheduled to take place on May 12, 2010, the 33 rd school day after March 19, 2010, to discuss the results of that evaluation and to propose further action. Taunton thus met its obligation to complete an evaluation and convene a Team meeting within 45 school working days after receipt of a parent’s written consent. (603 CMR 28.05)
In reviewing the entirety of the documentary record I could uncover no evidence of procedural impropriety with respect to the transitional evaluation process between December 4, 2009 and May 12, 2010. On the contrary, the documents reflect a swift, patient, understanding and creative response to the Parent (and more importantly to the Student) whose own interactions with the school were characteristically hostile, contradictory and replete with misapprehensions. Similarly, I found the testimony of Mr. Novick and Mr. Friedman to be professional, student-focused and consistent with the documentary record. The Parent’s testimony on the other hand was internally inconsistent, contradicted important relevant documents, reflected a poor memory of events and, unfortunately, did not advance the best interests of the Student. The School had argued throughout the hearing process that the issue raised by the Parent could be decided on documents alone as it was primarily one of statutory construction. The Parent insisted that the testimony she intended to present would challenge the documentary record. Reluctant to cut off testimonial opportunity for an inadequately represented Parent, the hearing was permitted to proceed. The Parent, however, presented no persuasive testimony challenging the documentary record. Based on my observations of her behavior over the course of the hearing process, my assessment of the credibility of her sworn testimony, and the ongoing contradictions in her presentation, I give the Parent’s testimony little weight. All conflicts in testimony are resolved in favor of the School’s witnesses. All conflicts between the Parent’s testimony and the plain language of the exhibits are resolved in favor of the documents. The clear preponderance, actually the gross substantial weight, of the evidence in this hearing supports the conclusion that Taunton appropriately responded to the Parent’s December 2009 requests for a transitional evaluation and met all pertinent obligations imposed by federal and state special education laws.
This credibility finding, while influential, is not outcome determinative. Even were I to believe the Parent’s version of events in those few relevant instances where it differs from that of the School’s witnesses, the sheer bulk of the consistent documentary and testimonial evidence overwhelms her perspective. The application of the plainly and repeatedly stated operative regulations to that evidence requires a finding in the School’s favor.
For educational purposes, however, I will turn briefly to the arguments raised by the Parent during the hearing and in her closing submission.
The Parent’s first and primary argument is that her December 4, 2009 Request for a Transitional Evaluation is equivalent to, or suffices as, her informed written consent to evaluate thereby triggering all the procedural protections afforded to students and parents during the special education evaluation process. She asserts that the request was signed and dated, referred to comprehensive tools and appropriate regulations, and thus on its face indicated the Parent’s “informed” consent to those tools she listed. The plain answer to this argument is that it is wrong. The issue isn’t whether the Parent knew what she was asking the School to do. The issue is whether the Parent knew (and consented to) what the School intended to do as a result of her request. The pertinent statutes and regulations are not ambiguous. (See discussion, infra. ) They spell out a process designed to ensure that parents know in advance what a school district will do. They limit a school district’s actions to only those to which the parent has agreed in writing. Nowhere in the regulations is the term “request” treated as the end product of the referral process. It is, rather, the beginning. The sequence established in both federal and Massachusetts special education regulations is: 1) referral/request for evaluation; 2) written notice to the parent of receipt of the referral/request15 ; 3) written notice of the school district’s proposed response to the referral/request; 4) written request for parental consent to the school’s actions proposed in the school’s “prior written notice” (step 3); 5) receipt of parent’s consent in writing to the actions proposed by the school and 6) commencement of the 45 school working day evaluation period using only those tools and processes to which the parent has consented.
The uncontradicted documents and the persuasive testimony of Mr. Friedman and Mr. Novick firmly support the conclusion that Taunton closely followed the letter and spirit of the applicable regulations by declining to treat the Parent’s December 4, 2009 “Request for Transitional Evaluation” as the equivalent of the Parent’s “informed written consent” required by law to actually begin the evaluation.
Second the Parent argues that Taunton “ignored” her December 4 2009 Transitional Evaluation Request. There is no credible evidence in this record to support that assertion. The documents submitted by both parties and summarized at ¶3-20 demonstrate that Taunton responded promptly and appropriately in writing to each of the Parent’s multiple, often confusing, requests. The School’s written responses were carefully tailored to address both the Parent’s requests and the evaluation needs and circumstances of the Student as known by the School at the time of its response. Where questions lingered the School appropriately sought clarification, participation and instructions from the Parent. In addition, I credit the testimony of Mr. Friedman, whom I found to be candid and sympathetic, that he had numerous phone conversations with the Parent and with her advocate concerning the proposed transitional evaluation throughout January, February and March 2010.
The Parent argues that Taunton failed to complete the transitional services assessments to which she consented. The uncontradicted evidence shows otherwise. Taunton timely completed the initial phase of the one evaluation for which the Parent provided written consent. (See ¶21.) Any failure to perform additional or alternate evaluations of Nelson’s transitional needs is entirely due to the Parent’s misunderstanding of the consent requirements concerning evaluations and the substantive process of conducting a transitional vocational evaluation.
The Parent argues that Taunton violated the Student’s procedural rights due to its failure to adhere to the timelines governing completion of the evaluation process. This argument is entirely without merit. All of the school district’s required notices and responses met the timelines set out in federal and state regulations. The record shows that Taunton arranged and completed the only component of the transitional evaluation for which it received appropriate written consent, and held a Team meeting, well within the 45 school working days after receipt of the Parent’s consent. Further, the record demonstrates that circumstances beyond the control of Taunton, including both the actions of the Parent and her advocate, and the recommitment of the Student to DYS custody, intervened to prevent any follow-up recommended by the School District.
The Parent argues that Taunton violated her procedural rights by failing to provide her with written notice of its refusal to act. No such form was ever necessary as the district never refused to provide the evaluations requested by the Parent. It only refused, properly, to evaluate Nelson without receiving her prior written informed consent.
The Parent’s argument that the district “missed opportunities” to complete the community skills component of the transitional evaluations while Nelson attended JRC is equally unpersuasive. The Parent overlooks both the fact that she had not, at that time, provided the district with the required consent, and the letter she wrote to the district demanding that no portion of the evaluation be conducted at or by JRC. (S-12)
Similarly the Parent’s claim that Nelson was harmed by the District’s failure to invite any relevant state agencies to the Team meetings convened for Nelson in March and May 2010 is misplaced. She fails to note the prior parent consent requirements associated with such an invitation, her repeated directives to the School that it not communicate with any outside entity regarding Nelson, and the fact that she accepted the transitional plans incorporated into both IEPs in force during the time period relevant to this Decision. (34 CFR 300.321(b)(3); Parent; Friedman.) Further there is no evidence in this record of any substantive educational harm to Nelson that is attributable to the actions or inactions of the School or any of its staff. To the extent the Student’s interests may have been compromised during the December 2009-June 2010 time period, he must look to his Parent for explanation.
Indeed it is beyond unfortunate that due to the Parent’s fundamental misunderstanding of the requirements for and operation of the parental consent provisions of state and federal special education law (which ironically were designed to protect parents and students from overreaching governmental intrusion), hundreds of hours over the last 20 months of parent, school personnel, attorney and administrative time have been spent arguing a point of black letter law. To be fair, the Parent frequently acted on the erroneous advice of her advocate who also misstated the applicable law and presented misleading or incomplete “facts” to the School and to the BSEA. (See e.g. S-12.) The Parent’s attempts to shift “blame” for this unhappy stalemate to the School District and its staff and legal representative reflect unreasonable personal animus not grounded in the facts demonstrated here or in the law.
The simple answer to the simple question presented in this matter is that a school district may not, even when a parent is misguided, evaluate a child without the parent’s consent. No parental consent to evaluate was given in this matter until March 19, 2010. That consent was limited by the plain English of the signed form to the South Coast Collaborative. The transitional evaluation, as described to the Parent, was begun. That it was not completed was due to the Parent’s refusal to participate appropriately in the process. (Novick; Friedman; Parent) The Parent did not carry her burden of proving otherwise.
CONCLUSION
The Taunton Public Schools appropriately responded to the Parent’s December 4, 2009 Request for a Transitional Assessment.
By the Hearing Officer
_______________________
Dated: September 8, 2011
1
“Nelson” is a pseudonym chosen by the Hearing Officer to protect the privacy of the Student in documents available to the public.
2
This request was the subject of an earlier hearing resulting in a Decision finding insufficient evidentiary support for a residential placement for Nelson, In Re: Taunton Public Schools 16 MSER 7 (2010).
3
There was conflicting testimony concerning the number of pages the fax transmission of 12/4/09 contained. As discussed infra at p.17, due to credibility assessments such conflicts are resolved in favor of the documents and the testimony of Mr. Friedman.
4
The appropriateness of Taunton’s response to the request for a Team meeting to discuss the court evaluation was not included in the Parent’s hearing issues and appears from this record to be procedurally defensible. See S-15.
5
See also 16 MSER 7 (2010).
6
603 CMR 28.03(3)(c).
7
Authority for this regulatory definition rests on 20 U.S.C §1414(1)(1)(D)(i)(1):
Consent for initial evaluation. The agency proposing to conduct an initial evaluation to determine if the child qualifies as a child with a disability as defined in section 1401 of this title shall obtain informed consent from the parent of the child before conducting the evaluation
and 20 U.S.C.§1414 )a)(3)(c):
Each local agency shall obtain informed parental consent, in accordance with subsection (a)(1)(D) ( supra ) prior to conducting any reevaluation of a child with a disability…….
8
Authority for implementing regulations found at M.G.L. c71B§2, 3.
9
34 CFR 300.300 (a):
Parent’s consent for initial evaluation (1)(i) The public agency proposing to conduct an initial evaluation to determine if a child qualifies as a child with a disability under Sec. 300.8 must, after providing notice consistent with Sec. 300.503 and 300.504, obtain informed consent, consistent with Sec. 300.9, from the parent of the child before conducting the evaluation.
10
For ease of reference the pertinent parts of the Massachusetts Special Education Regulations are:
603 CMR 28.04:
(1) Referral for Initial Evaluation. A student may be referred for an evaluation by a parent or any person in a caregiving or professional position concerned with the student’s development.
(a) When a student is referred for an evaluation to determine eligibility for special education, the school district shall send written notice to the student’s parent(s) within five school days of receipt of the referral.
(b) The notice required by 603 CMR 28.04(1)(a) shall meet all of the content requirements set forth in M.G.L. c 71B§3, and in federal law and shall seek the consent of a parent for the evaluation to occur , and provide the parents with the
opportunity to express any concerns or provide information on the student’s skills or abilities.
(emphasis added)
(2) Initial Evaluation. Upon consent of a parent, the school district shall provide or arrange for the evaluation of the student by a multidisciplinary team with 30 school days.
(emphasis added)
(3) Annual reviews and three-year reevaluations. The school district shall review the IEP, 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.
(emphasis added)
603 CMR 28.05
(1) Convening the Team . Within 45 school working days after receipt of a parent’s written consent to an initial evaluation or reevaluation, the school district shall: provide an evaluation ; convene a Team meeting to review the evaluation data, determine whether the student requires special education and, if required, develop an IEP in accordance with state and federal laws; and provide the parents with two copies of the proposed IEP and proposed placement, except that the proposal of placement may be delayed according to the provisions of 603 CMR 28.06(2)(e); or, if the Team determines that the student is not eligible for special education, the school district shall send a written explanation of the finding that the student is not eligible. The evaluation assessments shall be completed with 30 school working days after receipt of parental consent for evaluation . Summaries of such assessments shall be completed so as t ensure their availability to parents at least two days prior to the Team meeting. If consent is received with 30 to 45 school working days before the end of the school year, the school district shall ensure that a Team meeting is scheduled so as to allow for the provision of a proposed IEP or written notice of the finding that the student is not eligible no later than 14 days after the end of the school year.
(emphasis added)
603 CMR 28.05 (2) (b)
(b) Evaluation information is inconclusive. If the Team finds the evaluation information insufficient to develop and IEP, the Team with parental consent , may agree to an extended evaluation period.
11
“Parent’s Notice of Procedural Safeguards” is a 15 page document developed by the DESE and distributed by local school districts. The Notice includes the following language:
You will receive this Notice at least once each year if your student is identified as eligible
for special education. You can also request a copy from your school district at any time or from
the ESE. This document is available on the ESE Web site at http://www.doe.mass.edu/sped/prb.
1. What Is Prior Written Notice And When Do You Receive It? 34 CRF §300.503
The school district must provide you with a written notice when it proposes, or refuses, to take steps to identify your student, to evaluate your student, to provide special services to your student, or to change your student’s program. Federal regulations call this a “prior written notice.” The written notice must:
. Describe what the school district proposes ore refuses to do;
. Explain why the school district is proposing or refusing to take the
action;
Describe how the school district decided to propose or refuse to take
the action, including telling you about each evaluation procedure,
assessment, record, or report that your school district used to make
its decision; and
. Describe any other options that your student’s individualized education
program (IEP) Team considered and the reasons why those options
were rejected.
School districts will provide this information to you using forms developed by
the ESE and available on the ESE Web site or their own forms containing the
same information.
You will receive prior written notice when the school district: proposes to
conduct an initial evaluation or reevaluation; proposes a new or amended IEP; proposes a change in placement, including a proposed change in placement for
disciplinary reasons; or proposes to end special education services.
2. What Is Parental Consent? 34 CFR §300.9 and 600 CMR 28.07(1)
The school district may not give your student a special test or special service unless you agree and give your written “parental consent”. The school
district must contact you and clearly explain what it is proposing to do for your
student. The school district will then ask you to sign your name on the consent
form to show that you agree to the school’s proposal. This is giving “parental
consent”.
Giving your consent is voluntary. You may take back, or revoke, your consent
at any time. If you wish to revoke consent you must do so in writing. The
withdrawal of consent will only apply to future action by the school district
not to something that has already happened. Your school district may not use
your refusal to consent to one service or activity as a reason to deny you or
your student any other service, benefit, or activity.
Your consent is not required before your school district may review existing data as part of your student’s evaluation or reevaluation, give your student a test or other evaluation that is given to all students without consent such as the MCAS or classroom tests that are part of the general education program, or share information with federal or state educational officials.
2.1 When Will A School District Ask For Your Consent? 34 CFR §300.300 and 600 CMR 28.07 (1)
A school district will ask for your parental consent in the following
circumstances:
To authorize the initial evaluation to determine if the student is eligible
for special education
The school district cannot conduct an initial evaluation of your student to determine whether your student is eligible to receive special education and/or related services without first obtaining your consent. If your student is referred for an evaluation, the school district must ask for your consent to the evaluation within five school days.
To approve initial services
If, after the initial evaluation has been completed, the Individualized Education Program (IEP) Team has decided that your student is eligible for special education, the IEP Team will propose special education and related services and a placement for your student. You are a member of the IEP Team and must give your consent before your school district can provide special education and related services to your student for the first time . If you do not consent, the school district cannot provide special education and related services to your student. You can accept or reject the whole proposal or part of it. The IEP or any part that you accept must begin as soon as you accept it.
To make a change in services, placement or reevaluation
Once you have agreed to an IEP for your student, the school district must obtain your consent before the school district may change the services or the placement of your student, or conduct a reevaluation. If you refuse to give your consent, you have an obligation to engage with the district in active discussion to resolve your disagreement. If you have given consent to services in the past and now want to revoke consent and withdraw your student from services, you must do so in writing. The school district may not request a hearing at the Bureau of Special Education appeals (BSEA) to obtain authority to provide educational services or to reevaluate your student without your consent.
12
“Referral” is not defined in either federal or Massachusetts special education regulations. Therefore it is accorded its ordinary meaning: the process of sending, directing or submitting for treatment, aid, information or decision. Webster’s Third New International Dictionary , Unabridged . Merriam-Webster, Springfield, MA 1993. In the special education context “referral” and “request” are functionally equivalent.
13
Indeed the parent indicated in writing in several subsequent documents her refusal to consent to the type of testing she had previously requested. See eg ¶ 10, 13, 11, 15.
14
20 U.S.C.1414(a)(1)(d); 34 CFR 300.3001(d)(5).
15
It is important to note that the regulations do not distinguish between a referral made by a Parent and one made by a teacher or social worker or other non-parent. The Parent must be given written notice of the referral even when the request for evaluation has been made by the Parent.