COMMONWEALTH OF MASSACHUSETTS
SPECIAL EDUCATION APPEALS
Scituate Public Schools v. Student
BSEA #07-4676
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 said statutes.
A hearing was held on March 28, 2007 at the Scituate High School, 606 Chief Justice Cushing Highway, Scituate, Massachusetts before Catherine M. Putney-Yaceshyn, Hearing Officer.
PROCEDURAL HISTORY
Scituate Public Schools, (hereinafter, “Scituate”) requested a hearing on February 14, 2007 and the hearing was scheduled to occur on March 21, 2007. On February 22, 2007, Scituate requested a postponement which was allowed. There was a telephone conference call on March 14, 2007 during which the parties agreed that the hearing would occur on March 28, 2007. On March 16, 2007, Parent requested a postponement of the hearing and Scituate filed an objection to the postponement on March 20, 2007. The request for postponement was denied. The hearing was held on March 28, 2007 at Scituate High School. The Parties elected to make oral closing arguments at the close of evidence and the record closed at that time.
Those present for all or part of the Hearing were:
Mother
Father
Jodi Skypeck Special education teacher, Scituate Public Schools
Meredith Hilditch Speech language pathologist, Scituate Public Schools
Margaret Moncey Occupational therapist, Scituate Public Schools
Judith Norton Director of Special Education, Scituate Public Schools
Mary Ellen Sowyrda Attorney for Scituate Public Schools
Catherine M. Putney-Yaceshyn Hearing Officer
The official record of this hearing consists of Scituate Public Schools’ exhibits marked S-1 through S-12, Parents’ exhibits marked P-1 through P-13 and approximately 1.5 hours of recorded oral testimony.
ISSUE
1. Whether the BSEA should override the Parents’ lack of consent for Student’s three-year evaluation.
SUMMARY OF THE EVIDENCE
1. The student (hereinafter, “Student”) is a fourteen-year-old eighth grade student in the Scituate Public Schools (hereinafter, “Scituate”). He has been diagnosed with PDD-NOS, Symbolic Language Disorder, Hypotonia, and Anxiety Disorder. Additionally, he presents with an expressive-receptive language disorder and a Central Auditory Processing disorder. (P-10, S-11)
2. Scituate filed its request for hearing because it had sought parental consent to conduct Student’s three-year reevaluation on three separate occasions and Parents did not provide consent. (S-1) On or about November 20, 2006, Scituate sent an Evaluation Consent Form to Parents. The assessments to be completed included: academic achievement; speech and language; and occupational therapy observations. (S-8, S-9) Scituate received no response. (Norton) Scituate re-sent the request for consent to evaluate on January 5, 2006. (S-5) After the second request, Parent requested a Team meeting to discuss the evaluation. Scituate convened a Team on January 26, 2007. (S-7) Mother sent a letter dated January 31, 2007 and received by the special education office on February 2, 2007, expressing her concern that Student would miss “valuable instructional time by being assessed at this time.” (S-10) Judith Norton, Director of Special Education, responded to Mother’s letter in a letter dated February 5, 2007. She wrote that the staff who would be evaluating Student would provide her with a list of the tests and subtests they would administer to Student. Additionally, she informed her that Scituate would seek a Bureau of Special Education Appeals hearing if parental consent was not received by February 8, 2007. (S-2)
3. Student’s last three-year evaluation took place in November and December 2003. It was the first evaluation that Parents had provided consent for Scituate to perform. (S-11, P-10, Norton) Scituate had hoped to complete Student’s current three-year evaluation earlier in this school year. Student will soon be participating in MCAS testing and Scituate prefers not to administer testing during times that students are taking the MCAS. (Norton)
4. Margaret Moncey, an occupational therapist for the Scituate Public Schools, testified that she has provided direct services to Student and currently provides consultation to his program. She described the observations of Student she plans to perform and explained that she will conduct a sensory interview of Student during either a study period or Sustained Silent Reading. She is not concerned that her evaluation will cause Student anxiety as she has a positive working relationship with him and has never seen him appear anxious while working with her. She is not concerned that Student will have difficulty adapting to a change in his schedule because has seen him adapt to changes in his routine successfully in the past and she will talk to him about any change ahead of time. After assessing Student, Ms. Moncey will be involved in writing his new IEP and will participate in his Team meeting. She explained that school based testing is important because it will provide her with first hand information regarding the subtleties of his in-school performance. The testing will be important in writing an IEP that will provide Student with a free appropriate public education as he transitions to high school. (Moncey)
5. Meredith Hilditch has been a speech language pathologist for thirteen years and has spent the past school year in the Scituate Public Schools. She has a Master’s degree in speech language pathology and is certified as an educator and a speech language pathologist in Massachusetts. She has provided direct services to Student since September 2006. Student is very comfortable with her and never shows anxiety while working with her. Ms. Hilditch thinks it is important to assess Student at this time as he will continue to require speech language services at the high school and she wants to ensure that the goals on his IEP are appropriate. She is sensitive to Mother’s concern that Student not miss his instructional time and will minimize disruptions and use the fewest number of sessions possible in completing her assessment of Student. Additionally, she will assess the impact of the testing on Student and will make sure that the testing is not negatively impacting him. She will speak to Student’s teacher to determine the best times for Student to miss class for his evaluation. She finds school-based assessment important because it provides first hand information that gives her a good sense of Student’s treatment needs. After completing her assessment she will write a report and attend the Team meeting. She will write new goals for Student’s IEP as well. (Hilditch)
6. Jodi Skypeck is Student’s special education teacher and liaison. She has a Master’s degree and is licensed by the state of Massachusetts. Student is extremely comfortable with her and likes working with her. She is planning on administering achievement testing to Student. She plans on utilizing the Woodcock-Johnson, but does not think it is necessary to do all twelve sub-tests. She will choose the sub-tests that will give her the most useful information and will also use portions of the WIAT-II. She will “avoid at all costs” removing Student from his major academic subjects to conduct her evaluation. She also considers his physical education “sacred” and will not remove him from that class. She thinks his art class may be a good time to remove him and plans to stagger the time that he is removed. She does not believe that Student will suffer anxiety as a result of her testing. She believes that time is of the essence to complete his testing because Student’s IEP needs to be complete by the end of the school year. She is currently starting the transition process for special education students who are transitioning to the high school. She believes that school-based testing will provide particularly valid results because Student is very comfortable with her and she is familiar with him. Additionally, Student is familiar with and comfortable in his school environment. (Skypeck)
7. Judith Norton, Scituate’s Director of Special Education, explained that it is very important to plan appropriately for Student’s transition to high school. The Team needs to review testing results and develop an IEP and appropriate transition plan for Student. She echoed Ms. Skypeck’s opinion that school-based testing is particularly valid because of students’ comfort level in their familiar environment. (Norton)
FINDINGS AND CONCLUSIONS:
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 As such, he is entitled to a free appropriate public education (FAPE).
The sole issue before me is whether it is appropriate to override the Parents’ lack of consent and allow Scituate to conduct its three-year reevaluation of Student.
Federal law requires that a reevaluation of each child with a disability is conducted “at least once every 3 years, unless the parent and the local educational agency agree that a reevaluation is unnecessary. 20 USC § 1414(a)(2)(B)(ii). Similarly, state regulation requires that “…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.” 603 CMR 28.04(3). There is no dispute that Student has not been evaluated by Scituate since November and December 2003, thus Student’s reevaluation is overdue at this time. The parties have not agreed that an evaluation is unnecessary. In fact, Scituate has made a strong showing that Student’s reevaluation is necessary.
Federal regulation provides that
A public agency must ensure that a reevaluation of each child with a disability is conducted in accordance with §§300.304 through 300.311—
(1) if the public agency determines that the educational or related services needs, including improved academic achievement and functional performance, of the child warrant a reevaluation; or (2) if the child’s parent or teacher requests a reevaluation. See 34 CFR 300.303.
In the instant case, Scituate has shown that it needs to reevaluate Student in order to determine his current levels of performance to properly plan for his transition to the high school. Additionally, in order to write appropriate goals, the service providers must assess his current ability levels.
Federal law requires that
Each local educational agency shall obtain informed parental consent, in accordance with subsection (a)(1)(D), prior to conducting any reevaluation of a child with a disability, except that such informed parental consent need not be obtained if the local educational agency can demonstrate that it had taken reasonable measures to obtain such consent and the child’s parent has failed to respond. 20 U.S.C. § 1414(c)(3).
Similarly, the Massachusetts regulation pertaining to parental consent for a reevaluation states that, “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 C.M.R. 28.07(1)(a). The regulations require that the school district make and document efforts to contact the parent when their consent is required and the parent fails or refuses to participate in the process. 603 CMR 28.07 (1)(c). In the instant case, Scituate sent Parents three written requests for consent to evaluate Student. Additionally, the Team reconvened to discuss Parents’ concerns relative to the proposed evaluations. The Scituate evaluators corresponded with Parents regarding the assessments they would use and the proposed scheduling. (P-5) When none of Scituate’s efforts was fruitful, Ms. Norton advised Mother that she would be required to seek a Bureau of Special Education Appeals hearing to obtain consent if it was not provided.
Additionally, the Massachusetts regulations provide
If subsequent to initial evaluation and initial placement and after following the procedures required by 603 CMR 28.00, the school district is unable to obtain parental consent to a reevaluation …the school district shall consider with the parent whether such action will result in the denial of a free appropriate public education to the student. If, after consideration, the school district determines that the parent’s failure or refusal to consent will result in a denial of a free appropriate public education to the student, it shall seek resolution of the dispute through the procedures provided in 603 CMR 28.08. Participation by the parent in such consideration shall be voluntary and the failure or refusal of the parent to participate shall not preclude the school district from taking appropriate action pursuant to 603 CMR 28.08 to resolve the dispute. 603 CMR 28.07(1)(b)
In the case at hand, Scituate has made a showing that Student will be denied a free appropriate public education if they are not allowed to evaluate him. Student will be transitioning from the middle school to the high school in the next IEP period. It is important that the direct service providers who will be drafting his new goals and determining what services he requires have current information regarding his functioning and levels of performance.
A recent California case with a similar fact pattern provided a standard for allowing a school to proceed with a reassessment over the parent’s objection and provides useful guidance in the instant case. The administrative law judge required a school district to show
(1) that the parent has been provided an appropriate written reassessment plan to which the parent has not consented, and (2) that the student’s triennial reassessment is due, that conditions warrant reassessment, or that the student’s parent or teacher has requested reassessment. See Los Angeles Unified School District , 45 IDELR 264 (2006)
Scituate has shown that it has provided Parent with an appropriate written reassessment plan. (See S-5, S-6, S-8, S-9.) Additionally, Scituate scheduled a Team meeting and discussed the proposed assessments with Parents. Scituate staff provided Mother with a list of the specific tests they planned to administer. (P-5) Additionally, Scituate has shown that Student’s triennial reassessment is due. (S-11, P-10) Finally, Scituate has shown that conditions warrant reassessment. Student will be transitioning to a new school next year. In addition to drafting a new IEP, Scituate will be writing a transition plan for Student. It is important that current information is available to Scituate to plan for Student’s transition.
Although Mother chose not to testify at the hearing, her position is clear from her exhibits and the questions she asked witnesses during cross-examination. Mother is concerned about Student missing any time at all from his daily schedule. Additionally, Mother believes that Scituate has sufficient information from the yearly independent evaluations that Parents have provided. I am persuaded that the Scituate staff will do all they can to minimize interruption in Student’s instructional time. The Scituate staff testified sincerely that they would be mindful of any impact on Student caused by missing time from classes and would watch for any signs of anxiety. They also will work with Student’s teacher to determine which periods Student should be removed from and would not remove him from an academic or physical education class. Although Parents provide yearly independent evaluations to the school district, a school district is not precluded from doing its own testing by virtue of parents providing independent evaluations.
ORDER
Based upon the foregoing, I find that there is sufficient justification for overruling Parent’s lack of consent to Student’s three-year evaluation. Scituate may conduct its three-year evaluation despite Parents’ failure to provide consent.
By the Hearing Officer,
____________________________________
Catherine M. Putney-Yaceshyn
Dated: March 30, 2007
1
20 USC 1400 et seq .
2
MGL c. 71B.