Special Education Appeals BSEA #03-4709
COMMONWEALTH OF MASSACHUSETTS
Bureau of Special Education Appeals
In Re: Kyle1 and Mansfield Public Schools
This decision is issued pursuant to M.G.L. c. 71B and 30A, 20 U.S.C. § 1401 et seq ., 20 U.S.C. § 794, and the regulations promulgated under those statutes. At a prehearing conference held on September 4, 2003, the parties resolved most of the issues in dispute. They agreed to submit the remaining two issues to the Hearing Officer for decision on documents pursuant to BSEA rule 11 and 801 CMR 1.01 (10) (b). Both parties submitted additional arguments by September 10, 2003, and the record closed on that day. The issues for resolution are:
1. Whether the level, frequency and setting of the related services to be provided according to the 2003-2004 IEP comport with evidence available to the Team and with the recommendations of the related services evaluators and providers?
2. Whether the Parents are entitled to reimbursement of expenses they incurred in securing speech-language, and occupational therapy evaluations in the spring, 2003?
Summary of the Facts
The pertinent facts are not in dispute and may be briefly summarized:
1) Kyle is a five year old student who has received special education services through the Mansfield Public Schools since he turned three. Kyle has a serious, partially controlled, seizure disorder which requires constant adult supervision and management, strict adherence to a specialized ketogenic diet, the availability of trained personnel to provide appropriate intervention and documentation in the event of seizures at school, and accommodations to his variable stamina and attention. In addition to safety and medical management Kyle’s neurological status presents learning challenges in the areas of motor skills, speech and language skills and cognitive development.
Kyle is cheerful, resilient, and comfortable in the classroom. He approaches most activities at a slow, deliberate pace and operates broadly at an age appropriate level in all areas of educational functioning. He requires explicit, structured multi-modal teaching that takes into account his slow pace, provides opportunities for repetition and overlearning, and is sensitive to his highly variable performance.
(Ex. 86; 4; 6; 7)
2) During the 2002-2003 school year Kyle attended the Mansfield Integrated Preschool three mornings per week. According to the Individualized Education Plan in effect for that year Kyle received direct occupational therapy once a week for half an hour. He also received direct speech and language therapy in twice weekly twenty minute sessions. There is no indication on the IEP, nor in the progress reports submitted by the therapists, of the setting in which these services were delivered. (Ex. 85, 88, 93, 94, 97)
3) During the 2002-2003 school year Kyle received additional direct occupational therapy through the Morton Hospital. The frequency and duration of these services is not evident from the documents. (Ex. 48) The Morton Hospital occupational therapist, on April 1, 2003, recommended that Kyle receive two hours of occupational therapy per week. She did not discuss the setting or mode of delivery recommended for this service.
4) In September 2002, a speech and language evaluation was conducted by Morton Hospital. The evaluator recommended that Kyle receive direct, individual, speech-language therapy twice weekly for 45 minute sessions. (Ex. 39)
5) Kyle began receiving individual speech and language therapy outside school with Edith Trafford in December 2002. The record does not show the frequency or duration of the therapy sessions. In March 2003, Ms. Trafford recommended that Kyle receive an hour of individual speech language therapy three times each week “until full integration into regular education is achieved.” (Ex. 42) After conducting a comprehensive speech-language evaluation in May 2003, Ms. Strafford recommended placement in an intensive, language rich program with a low student-teacher ratio and team-teaching with a speech-language pathologist. Ms. Strafford also recommended continued direct speech-language therapy, but did not indicate an appropriate setting, frequency or duration for the recommended therapy. (Ex. 43)
6) At the School’s request, on February 22, 2003, the Parents consented to an assessment of Kyle’s occupational therapy and speech-language therapy needs, in preparation for a Team meeting. (Ex. 59) The occupational therapist found Kyle to be functioning within normal limits and did not recommend any services. (Ex. 31) No contemporaneous speech-language assessment appears in the record.
7) On March 31, 2003, Edith Trafford, the speech-language pathologist who had been working individually with Kyle since December 2002, wrote that he needed three, one hour, individual speech-language therapy sessions per week. (Ex. 42)
8) On April 1, 2003, Bridget Kearn, the occupational therapist who had been working with Kyle since July, 2001, wrote that he needed at least two hours per week of occupational therapy with additional consultation to teachers and parents. (Ex. 49)
9) A Team meeting was held on April 1, 2003, at which the Parents requested an increase in occupational therapy and speech language services to Kyle, consistent with the recommendations of his outside service providers. The School developed an IEP for Kyle that proposed continuing his then current level of occupational therapy service at one thirty minute session per week and increasing the speech language therapy from twice weekly twenty minute sessions to twice weekly thirty minute sessions for the remainder of 2003-2004 school year. The proposed IEP added a third thirty minute speech therapy session for Kyle’s kindergarten year beginning in September, 2003. There is no indication in the proposed IEP of the setting contemplated for the therapy services. (ex. 86)
10) On April 27, 2003, the Parents, through their advocate, wrote to the school requesting independent educational evaluations in the areas of occupational therapy and speech-language therapy. The Parents identified the selected evaluators: Edith Trafford, speech-language pathologist, and Jean Croll, registered occupational therapist. The district denied the Parents’ request on May 2, 2003, on the basis that it had been more than sixteen months since the last evaluation in those areas. The School also requested permission to advance Kyle’s scheduled May, 2004, three year re-evaluation. (Ex. 61, 63) The School did not request a hearing at the Bureau of Special Education Appeals on its denial of the Parents’ IEE funding request.
11) The Parents rejected the proposed 2003-2004 IEP on May 6, 2003. They requested a meeting with the School. (Ex. 65) The School did not schedule a meeting. On May 23, 2003, the School requested the Parents’ consent to school provided occupational therapy and speech language therapy evaluations. (Ex. 68)
12) In May 2003, Jean Croll conducted an occupational therapy evaluation of Kyle. She found that he had significant motoric needs, and that his score on at least one standardized test had decreased since his previous testing nearly three years before. Ms. Croll recommended that Kyle receive intensive occupational therapy intervention within the school setting to address his fine motor and visual-spatial skills. She also recommended that Kyle be seen individually by an occupational therapist twice a week for thirty minute sessions. She noted that consultation and carryover of occupational therapy strategies to the classroom would be critical. (Ex. 51)
13) Edith Trafford conducted a speech-language evaluation in May 2003. She found Kyle to have delayed receptive and low average expressive language skills. She noted that Kyle’s medical condition adversely affected the motor control and stamina necessary for optimal speech production. Ms. Trafford recommended that Kyle be placed with an aid in a full day, full year intensive, language rich program team taught by a teacher and a speech-language pathologist. She noted that Kyle would benefit from direct speech-language therapy, but did not indicate the setting, duration, level or frequency of the recommended therapy. (Ex. 43)
14) The Team reconvened on July 8, 2003, to consider the results of the parentally secured evaluations and current medical information. On August 21, 2003, the School proposed an IEP calling for Kyle to receive direct occupational therapy twice a week for thirty minute sessions, and direct speech-language therapy three times per week for thirty minute sessions, while in kindergarten. No service setting or intensity level was indicated on the IEP. (Ex 115, 117)
Findings and Conclusions
There is no dispute concerning Kyle’s eligibility for or current placement in special education. The issues here are narrow, and the pertinent evidence, thin. After careful consideration of the available documentary evidence, and the arguments of both parties’ representatives, I make the following determinations:
A) The last proposed 2003-2004 IEP for Kyle contains the recommended service level for occupational therapy as set out in the Jean Croll evaluation secured by the Parents. Ms. Croll recommended two weekly half hour sessions of direct occupational therapy for Kyle. The 2003-2004 IEP provides for twice weekly 30 minute direct occupational therapy sessions for Kyle. There are no other recommendations in the record. The only point of contention that might remain is the lack of a designation on the IEP service delivery grid that the occupational therapy is to be delivered to Kyle on an individual basis, as Ms. Croll recommended. There exists no obvious space on the current grid format for noting that information, though it appears elsewhere on the IEP. So long as the grid is modified to more accurately represent the recommendations of Ms. Croll for individual therapy and those services are actually delivered to Kyle, I find that the proposed occupational therapy services comport with the Ms. Croll’s findings and the other evidence available to the Team.
B) The most current speech language evaluation, that conducted by Ms. Trafford, does not make any specific recommendations for the type, level, frequency or duration of speech-language therapy services to Kyle. (See ¶ 13) Kyle had been receiving two, twenty minute direct speech therapy sessions while he attended preschool. (ex. 85) The proposed IEP increases his service level to three, thirty minute sessions of direct therapy. This service increase reflects both the Parents’ desire for additional therapy time and Kyle’s maturation, while accommodating the lack of documentary evidence linking educational benefit to more intensive therapy services in this area. I find therefore that the Team developed a speech-language therapy plan that was based on all the information it had, and was reasonably calculated to provide an appropriate service level while accommodating Kyle’s other educational needs.
II. The entitlement to an independent educational evaluation at public expense is one of the cornerstones of the special education planning and programming process. That right is so fundamental to the development and oversight of appropriate special education programs for individual students that both federal and state statutes have sections specifically addressing the availability and use of this type of information. Generally, the purpose of laws concerning independent evaluations is to encourage all interested parties to gather sufficient, current, credible, accurate information to develop and implement appropriate education services.2 Under either federal or state special education law, should the School decline a parental request for a publicly funded independent evaluation, the School must, within 5 days, request a determination from the Bureau of Special Education Appeals that the School’s evaluation was comprehensive and appropriate. 34 CFR 300.502 (b) (2); 603 CMR 28.04 (5) (d).
In this case, the Parents gave their consent to school-based assessments in the areas of occupational therapy and speech-language therapy on February 22, 2003. The record shows that an occupational therapy “assessment” was done, though it was neither comprehensive nor timely. The record also shows that the school based speech-language assessment was never completed. When the Parents requested public funding of independent evaluations in those areas, the School declined but failed to proceed to the Bureau of Appeals to show that their own assessments were comprehensive and appropriate, as required by federal and state procedures. While it may have been difficult in these circumstances for the School to meet that standard, failing, at a minimum, to take that step to the Bureau is fatal.
The law imposes an affirmative obligation on school districts to justify a refusal to fund an independent evaluation. The remedy for failure to discharge this obligation is disbursement of public funds for the requested evaluation. Therefore Mansfield is obligated to reimburse the Parents for all out-of-pocket expenses associated with securing independent occupational therapy and speech-language therapy evaluations for Kyle in the spring of 2003.
The occupational therapy and speech-language therapy services provided in the 2003-2004 IEP developed for Kyle are consistent with the evidence available to the Team and reasonably calculated to ensure a free, appropriate public education to him. The Parents are entitled to reimbursement of out-of-pocket expenses incurred in securing independent occupational therapy and speech-language therapy evaluations in the spring of 2003.
By the Hearing Officer,
Lindsay Byrne, Hearing Officer
Kyle is a pseudonym selected by the Hearing Officer to protect the privacy of the Student in publicly available documents.
To further that goal federal law permits a parent to request a publicly funded evaluation at any time. 20 U.S.C. 1415 (b) (1); 34 CFR 300.502. The parallel state law provides, in part, the right to a publicly funded IEE for income eligible families on a sliding scale cost-sharing arrangement, if a parent requests an independent evaluation within 16 months of a contested school based evaluation. M.G.L. c. 71B § 3; 603 CMR 28.04 (5) (c) (vi). The 16 month reference does not serve to limit the parents’ request rights, but instead to limit application of the sliding fee scale. See : Administrative Advisory SPED 2004-1: Independent Educational Evaluations. October 23, 2003. In most circumstances the federal law will govern the parties’ rights and responsibilities with respect to independent evaluations. This means, for all practical purposes, that parents have the right to full public funding of an independent evaluation unless the school district is able to convince a hearing officer that its own evaluation(s) is comprehensive and appropriate.