COMMONWEALTH OF MASSACHUSETTS
SPECIAL EDUCATION APPEALS
In Re : Student v. Longmeadow Public Schools District
BSEA # 02-0978
RULING ON THE SCHOOL’S MOTION DISMISS AND THE PARENT’S MOTION IN OPPOSITION TO THE SCHOOL’S MOTION TO DISMISS
On August 22, 2001 the Parent/Student filed a request for Hearing in the above referenced matter alleging procedural violations as a result of Longmeadow Public Schools’ (hereinafter, “Longmeadow”) failure to provide information regarding independent evaluations and failure to provide information on public funding of independent evaluations. As a relief, the Parent requested “compensatory services that would not be provided based on the last IEP, for the next school year; reimbursement for a complete independent evaluation; reimbursement for any associated expenses pertaining to this issue; and punitive services, that is additional services (speech and language) for the child.” A notice of Hearing was issued by the BSEA on August 23, 2001 setting the matter for Hearing on September 11, 2001.
On August 30 th the Parent requested a postponement of the automatic Hearing date and a BSEA Order setting the matter for a telephone Conference Call was issued on August 31, 2001. The Conference Call was held on September 7 th and the Parent was instructed to inform the BSEA as to whether he intended on proceeding with his claim and to clarify what his specific allegation was. Said intent was received in writing on September 12, 2001. On September 26 th Longmeadow filed its Motion to Dismiss and a Leave to Submit Motion to Dismiss and Affidavit. Longmeadow’s Motion for Leave to Submit Motion to Dismiss was Granted via separate Ruling issued on October 1, 2001. On October 10, 2001 the Parent’s Motion in Opposition to Longmeadow’s Motion to Dismiss was received.
Longmeadow submitted School Exhibit A in support of its motion. No additional document was proffered by the Parent. This Ruling 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 said statutes.
Arguments of the Parties:
Longmeadow requests that the matter be dismissed because the issue is not ripe to be adjudicated at this time. It claims that in the original Request for Hearing the Parent alleged that a dispute regarding a request for an independent evaluation existed. According to Longmeadow, the Parent never requested an independent evaluation in any area of the assessments performed by Longmeadow. On June 11, the Parent wrote to Longmeadow’s Director of Special Education, Mr. John Kelly, requesting general information regarding the independent evaluation process. (SE-A) At that time the Parties were involved in a Hearing with Hearing Officer Lindsay Byrne, regarding the student’s eligibility for special education. Longmeadow asserts that the information requested was offered verbally by Mr. Kelly in the course of that hearing. Mr. Kelly informed the Parent that he needed to provide Longmeadow with specific information regarding which of the district’s evaluation he disputed. When the Parent requested the Hearing before me, he had not requested any independent evaluations from Longmeadow. While Longmeadow argues in its motion that it will respond to the Parent’s request for independent evaluations when it receives the request from the Parent, Longmeadow’s Counsel stated the District’s willingness to pay for the independent evaluations if requested, during the telephone Conference Call of September 7, 2001. Since no such request has been received, and no request for evaluations has been denied, the controversy is not ripe for hearing. Therefore, the case should be dismissed.
The Parent argues that under the Massachusetts Regulations regarding Special Education, Longmeadow is required to provide information on public funding of independent evaluations when a request for information is received. This information was received by Longmeadow who, according to the Parent, failed to provide said information. The Parent asserts that Longmeadow’s claim that Mr. Kelly provided an oral response during the hearing on the Student’s eligibility for special education, is an admission that a violation occurred. The Parent alleges that information was not given following either telephone or written requests. According to him, the district’s claim that the information was provided during the Hearing over one month after the request was made is a violation under 603 CMR 28.04 (5)(c)(ii). Lastly, the Parent argues that Longmeadow confused the issue for Hearing in that the Parent is not disputing that the District failed to provide independent evaluations but rather that it failed to provide information regarding the process involved in independent evaluations.
Ruling :
Upon careful consideration of the information provided by the parties, the arguments made and the applicable law and caselaw, I rule in favor of Longmeadow.
The Parent is correct that the BSEA is the proper forum to address violations of a student’s rights regarding special education. The BSEA’s jurisdiction covers violations under Federal and State laws. 603 CMR 28.08. Hence, the Parties are properly before the forum that can address their concerns. As such, I turn to the issue before me.
The Parent’s letter of June 11, 2001, to Longmeadow requested only “necessary information for an independent evaluation”, it did not request information regarding funding or requested an independent evaluation on any specific area. (SE-A)
Massachusetts Regulation 603 CMR 28.04 (5) regarding Independent Evaluations 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 evaluation.” Subsection (c) of the same Regulation states that “when the parent requests public funding for an independent evaluation, the district shall abide by the following provisions for a sliding fee scale:…” 603 CMR 28.04 (5) (c). In making his argument, the Parent relies on 603 CMR 28.04 (5)(c)(ii), which discusses voluntary provision of information regarding family income, application of a sliding fee scale, etc. Furthermore, 603 CMR 28.04 (5)(c)(ii) assumes that the Parent has complied with the previous requisite of this section, namely that the parent has requested an independent evaluation and that the parent has requested public funding for said evaluation. The exhibit and arguments offered indicate that to date the Parent has not requested either. All that has been requested is information on independent evaluations. (SE-A) The Regulation cited by the Parent is triggered only after the two aforementioned elements are complied with and since the Parent has done neither 603 CMR 28.04 (5)(c)(ii) is inapplicable at this juncture. Any controversy arising from the Parent’s future request for an independent evaluation is not ripe for adjudication.
All that the Parent has effectively asked of Longmeadow is that information regarding independent evaluations be provided. According to Longmeadow, this information was offered orally by Mr. Kelly during a hearing between the same parties before Hearing Officer Lindsay Byrne during the summer of 2001. The Parent did not dispute this allegation which I credit as a fact. Therefore, the Parent was provided general information regarding his June 11 th inquiry orally at the Hearing held during the summer of 2001.
Lastly, judicial expediency would mandate that a party brings all issues and claims at once. The Parent had an opportunity to request information on independent evaluations at the time of the hearing before Hearing Officer Lindsay Byrne.
________________________
ORDER
Longmeadow’s Motion to Dismiss is GRANTED and the Parent’s Motion in Opposition to Longmeadow’s Motion to Dismiss is DENIED.
Case DISMISSED.
So ordered by the Hearing Officer,
Rosa I. Figueroa
Hearing Officer
Dated: October 30, 2001