COMMONWEALTH OF MASSACHUSETTS
SPECIAL EDUCATION APPEALS
In Re: Abington Public Schools v. Student
BSEA # 04-3493
DECISION
This decision is issued pursuant to 20 U.S.C. 1401 et seq. (the “IDEA”), 29 U.S.C.794, M.G.L. chs. 30A, 71B, and the regulations promulgated under those statutes.
Abington Public Schools’ (hereinafter, “Abington ) requested a Hearing in this matter on February 26, 2004. Abington then requested a postponement of the Hearing and following submission of a written status report the matter was scheduled for Hearing. The Hearing was convened on May 12, 2004 at 350 Main St., Malden, MA, before Hearing Officer Rosa I. Figueroa.
Abington made an oral closing argument on May 12, 2004, and the Record closed on the same date.
Present during part or all of the Hearing were:
Parent
Student’s Grandmother
Mary Ellen Sowyrda, Esq.
Joanne Haley Sullivan
Assistant Superintendent for Pupil Personnel Services, Abington Public Schools
Abington’s Exhibit (hereinafter, “SE”) 1, and Parents’ Exhibits (hereinafter, “PE”) 1 through 6, were admitted in evidence and were considered for the purpose of rendering this decision.
ISSUE PRESENTED:
1. Whether Abington is responsible to fund an independent evaluation where Abington has not received consent from Parents to perform the initial evaluation?
POSITION OF THE PARTIES:
Abington’s Position:
Abington asserts that it is not responsible to fund an independent evaluation requested by Parents because Parents have not yet authorized Abington to conduct its own school based testing. Abington states that the regulatory scheme is clear that a parent’s right to an independent evaluation does not arise until the school has first performed its own. There are legal and educational reasons for this to occur in this manner. Abington would agree to consider Parents’ request for an evaluation after it has conducted its own school based testing. It, however acted within the scope of its legal authority.
Parents’ Position:
Parent states that Abington did not act responsibly in assessing her son appropriately in all suspected areas of need. It was she who had to bring to Abington’s attention the numerous difficulties her son was having with reading, writing, concentration and organization. She asserts that the school’s evaluation process takes too long and time is of the essence. She brought Student’s needs to Abington’s attention for the second time in November 2003 and the Team did not meet until February 2004. Parent does not know the law and did not have much information regarding special education. She concedes that Abington informed her of the need to conduct a school neuropsychological evaluation before Parent had a right to an independent evaluation in that area. Parent states that she did not believe that Student needed to undergo testing twice and she did not want to wait any longer for an evaluation. The person recommended to her could perform the evaluation quickly. While all of the school delays were going on, her son continued to struggle in school. It wasn’t until Parent brought in Student’s doctor’s note diagnosing him with Attention Deficit Disorder that Student was finally placed on a 504 plan.
Parent does not understand why Abington would rather spend money on attorney’s fees instead of putting that money towards helping Student by paying the rate setting rate for the independent evaluation. Parent agreed to pay the difference on an evaluation, which costs $1,500.00. Also, Parent does not understand why Abington’s policy is implemented at random as it agreed to fund the independent evaluation of another student in a similar situation but denied her son’s. She does not believe that it is fair that Parents should bear the cost of the evaluation. Lastly, Parent states that there are trust issues between Parents and the school district and she would not have accepted the result of an evaluation conducted on behalf of the district even if the results had been the same as the one she had done privately.
FINDINGS OF FACT
· Student is a nine-year-old third grader at the North School in Abington, MA (PE-4; Testimony of Ms. Sullivan) Student is currently being treated by Gerald Katz, M.D., for Attention Deficit Disorder, diagnosed in March 2004, for which he takes Adderall XR 20 mg daily. (PE-1; Testimony of Parent) He is considered a bright young boy, in general a good student who has met with academic success. (Testimony of Parent, Ms. Sullivan)
· At Parents’ request, Student underwent a psycho-educational evaluation and academic testing in Abington at the end of the 2002-2003 school year. (Testimony of Ms. Sullivan) The Team met on June 4, 2003, and found Student not to be eligible to receive special education services. Student was promoted to the third grade. (Testimony of Ms. Sullivan)
· Via letter of January 5, 2004 Gerald B. Katz, M.D. from South Shore Pediatric Associates, wrote stating that he suspected that Student had a learning disability and or Attention Deficit Disorder. (PE-3) He recommended that given Student’s significant learning difficulties in all academic subjects and especially in reading, math, and with concentration and organization, Student should undergo a full evaluation. (PE-3) Since Student had already been evaluated by Abington in May 2003, an evaluation that in Dr. Katz’s opinion had not been diagnostic nor helpful to him in defining useful interventions, he recommended that the evaluation be done outside school. (PE-3)
· According to Parent, Student continued to struggle with reading, math, written language and organization. Parent was concerned that the testing done in Abington did not provide an accurate picture of Student’s issues because it was performed in a separate setting and administered one-on-one. The testing environment avoided distractions and noise with which Student had to contend on a day to day basis, in a classroom with thirty (30) other students. (Testimony of Mother)
· Parent contacted Abington again in January 2004, to inquire about possible options for Student to receive support in his classes. Joanne H. Sullivan, Assistant Superintendent for Pupil Personnel Services over the past 10 years, reviewed Student’s records and identified written expression as an area of concern. (Testimony of Ms. Sullivan) Once parental consent was obtained Student underwent a written expression evaluation and also an informal reading assessment was performed. (Testimony of Ms. Sullivan)
· On February 4, 2004, Student underwent a neurological consultation with Dr. Rizcalla Mouchati, M.D. (PE-4) Dr. Mouchati’s impression was that Student presented with a learning disability for reading, possible dyslexia; had staring spells, possible seizure; rule out thyroid dysfunction; possible mild attention deficit disorder. She recommended that Student have an EEG and thyroid function tests. If these tests came back normal, Student should undergo a neuro-psychological evaluation to evaluate for dyslexia. (PE-4)
· On February 21, 2004, Parents wrote to Joanne Haley-Sullivan in Abington stating that Student’s pediatrician and the neurologist had recommended that Student be tested for dyslexia and or Attention Deficit Disorder. (PE-2) Parents had selected Dr. Susan Colcher, Ph.D., in Hanover, MA to conduct the evaluation at a cost of $1,500.00. (PE-2). This request was received by Abington on February 23, 2004. (Testimony of Ms. Sullivan)
· On or about February 23, 2004, Student’s Team met. (SE-1; Testimony of Ms. Sullivan) Once again the Team found Student ineligible to receive special education services. (Testimony of Ms.Sullivan) Recommendations were made for Student to receive support and accommodations in the regular education classroom. Abington had also received on that date Parents’ request that Student undergo a neuropsychological evaluation, with Dr. Susan Colcher. (SE-1) Mother was concerned about any further delays setting up the evaluation and obtaining the results. Parent also had lost her confidence in Abington. (Testimony of Mother) Parents did consent to two other assessments, a reading evaluation and a class observation. (Testimony of Ms. Sullivan)
· On February 24, 2004, Abington forwarded to Parents a “Parent Consent for Team Re-Evaluation”. (SE-1) Abington sought to conduct a behavior rating scale, a reading test and a neuropsychological evaluation, which would be administered at READS Collaborative, to obtain neuropsychological functioning. (SE-1) Ms. Sullivan explained to Parent that under the regulatory scheme, the school had to perform an evaluation before parents were entitled to an independent evaluation in a particular area, otherwise Parents would not be entitled to an evaluation at public expense. Parents refused consent to Abington’s evaluation since they were concerned that Student would have to undergo the same evaluation twice and they did not know how long it would be before the evaluation took place. (Testimony of Parent)
· On February 26, 2004 Abington notified Parents of its refusal to approve the neuropsychological evaluation requested by Parents. (SE-1) Abington stated that it has not had an opportunity to conduct its own neuropsychological evaluation, and proposed that Student be evaluated at READS Clinic in Middleboro, MA. Additionally, Abington proposed that its staff conduct specific reading testing to consider whether Student had a specific learning disability. A request for both evaluations to be conducted was attached to Abington’s letter. (SE-1) The parents’ rights brochure was attached.
· On March 4, 10, 11 and 15, 2004, Susan Colcher, Ph.D., licensed psychologist in MA, conducted a neuropsychological evaluation of Student at the request of Parents. (PE-6) She noted that Student had some difficulties with self- organization, visual organization and flexibility as the testing information became more complex, and with written math problems. Weaknesses in reading were also noted. (PE-6) She recommended intensive small group support in reading, small group support in math and special support with writing skills. (PE-6) She further recommended that Student be given extra time for all written assignments and tests; copying from the board should be limited; he should learn keybording skills; outlining skills should be stressed; and visual information should be simplified. (PE-6)
· The invoice for services rendered by Dr. Colcher was for $ 1,500.00. (PE-5)
· Student’s Team met again on April 5, 2004 to discuss the results of the evaluation by Dr. Colcher and the class observation by the adjustment counselor. (Testimony of Ms. Sullivan) Again Student was found ineligible to receive special education services. ( Id. )
· On April 7, 2004, Abington received a note dated April 2, 2004, from Dr. Katz, Student’s pediatrician, stating that Student was being treated for Attention Deficit Disorder, for which he was prescribed 20 mg daily Adderall XR. (PE-1; Testimony of Parent, Ms. Sullivan) Parent has observed some improvement in the areas of organization and concentration since Student began taking the medication, but the effects of the medication do not appear to be consistent. (Testimony of Parent)
· At that point Student was found to be eligible to receive services under a Section 504 Accommodation Plan which runs from April 28, 2004 through April 28, 2005. (Testimony of Parent, Ms. Sullivan)
CONCLUSIONS OF LAW:
Abington agrees that the BSEA has authority to resolve this dispute under 603 C.M.R. 28.08(3)(a). The issue before me is whether Abington is responsible to fund Parents’ independent evaluation when it has not been able to conduct its own evaluation first as Parents have refused school based testing. Upon careful consideration of the facts presented to me I find that Abington is not legally responsible to cover the expenses associated with Parents’ independent neuropsychological evaluation. My reasoning follows:
In Massachusetts, 603 C.M.R. 28.04 et seq. governs the procedures associated with referrals and evaluations of students suspected of presenting with special education needs. The regulations require that within five school days of the date on which the referral is received, the district must send written notice to the parents seeking parental consent for the evaluation to occur. Notice must be provided and parental consent must be sought in accordance with M.G.L. c.71 B§3 and the IDEA. (603 C.M.R. 28.04(1) et seq.) Once the school receives consent to conduct the evaluation,
… the school district shall provide or arrange for the evaluation of the student by a multidisciplinary team within thirty (30) days. The assessments used shall be adapted to the age of the student and all testing shall meet the evaluation requirements set out in state and federal law. The school district shall ensure that appropriately credentialed and trained specialists administer all assessments. 603 C.M.R. 28.04(2)
Under this section, the regulations go on to list which assessments the district is required to complete and which are optional. See 603 C.M.R. 28.04(2)(a) and (b).
Each person conducting an assessment is then required to summarize it in writing and state the procedures and tools employed, state the results, the diagnostic impression, define in detail the student’s needs and offer specific recommendations on how to address those needs. (603 C.M.R. 28.04(2)(c)) School districts must also conduct re-evaluations every three-years or sooner, to monitor students’ progress.
Under these regulations, a parent’s right to an independent evaluation arises upon receipt of the school district’s evaluation results. 603 C.M.R. 28.04(5) specifically states:
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.
The language in the aforementioned regulation is unequivocal that the right to an independent evaluation does not arise until after the district has conducted its own evaluation and only if the parent disagrees with the results of the district’s evaluation.
On Monday February 21, 2004, Parents’ wrote to Abington to request an independent neuropsychological evaluation. (PE-1) This request was received by Abington on February 23 rd and on February 24 th Abington sent a consent form to Parents so that Student could undergo a neuropsychological evaluation at READS Collaborative. (SE-1; Testimony of Ms. Sullivan) Parents did not consent to the evaluation and proceeded with their own private evaluation. (Testimony of Parent) On February 26, 2004, Abington notified Parents that their request for an independent evaluation was denied and that same date it requested a Hearing before the BSEA. In the same notice, Abington agreed to consider Parents’ request for an independent evaluation after school based testing was completed, in accordance with the applicable Massachusetts special education regulations.
603 C.M.R. 28.04(5)(d) states,
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. [Emphasis supplied]
At first glance, the language of this regulation, if read independently from the rest of the regulation’s section is confusing and seems to leave the district no recourse but to pay for an independent evaluation in an area not tested by it, if the district cannot show that its’ evaluation was comprehensive and appropriate. (See 603 C.M.R. 28.04(5)(f)) However, subsection (f) of 603 C.M.R. 28.04(5) falls within and is subject to section (5), which states that “ 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 .” [Emphasis supplied] When read in context it is therefore clear that the drafters of the regulations intended for the school district to be the first to conduct an evaluation in a specific area before a parent’s entitlement to an independent evaluation arises.
Furthermore, the regulation requires the school district to act by either agreeing to fund the evaluation or denying it and requesting a hearing before the BSEA within five school days . As stated previously, Ms. Sullivan testified that Abington had received Parents’ written request (PE-2) on February 23, 2004. Abington then responded denying the request within five days of receipt of Parents’ request, and filed an appeal before the BSEA the same date, that is, February 26, 2004. In light of the facts of this case and the aforementioned regulations, Abington was not legally responsible to fund an independent evaluation until it had first completed its own, and the Parent had then disagreed with the results.
Parents however, always have the option of having their children evaluated privately at their own expense, and then presenting those evaluations to the Team, which must be convened within ten school days, for consideration of the report. (See 603 C.M.R. 28.04(5)(f)) In the instant case, Abington reconvened the Team upon receipt of Dr. Colcher’s evaluation and later, upon receipt of Dr. Katz’ diagnosis, drafted a 504 plan.
Order:
Abington is not responsible to fund the private neuropsychological evaluation performed by Dr. Colcher at Parents’ request.
So Ordered by the Hearing Officer,
_____________________________________
Rosa I. Figueroa
Dated: 5/13/2004
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 seek 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 from 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.
May 13, 2004