Special Education Appeals BSEA #99-1539
COMMONWEALTH OF MASSACHUSETTS
DEPARTMENT OF EDUCATION
BUREAU OF SPECIAL EDUCATION APPEALS
IN RE: MILLIS PUBLIC SCHOOLS BSEA #99-1539
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. Pursuant to Rule 11 of the Hearing Rules of the Bureau of Special Education Appeals , the Parties agreed to submit this matter for decision based upon written documents. By Order of the Hearing Officer, necessary additional testimony was provided via the telephone on February 4, 1999. Those participating in all or part of the proceedings were:
Parent Mother of Student
Teresa Sauro Advocate for Student
Mary Ellen Sowyrda, Esq. Counsel for Millis Public Schools
George Scollins, Ph.D. Director of Pupil Personnel Services, Millis Public Schools
Matthew MacAvoy Hearing Officer
The official record of this proceeding consists of exhibits submitted by the School marked S-1 through S-3, exhibits submitted by the Parent marked P-1 through P-5, Stipulations of Fact, and approximately one (1) hour of recorded oral testimony.
Whether the Parent is entitled to reimbursement for independently procured speech and language therapy in excess of the rate established for said service by the Division of Health Care Finance and Policy.
The Parents are entitled to reimbursement for the actual cost of the speech and language services they obtained for the Student. Due to a lack of qualified staff, Millis failed to provide the weekly speech and language therapy called for in the Student’s December 1997 – December 1998 IEP. Consequently, the Parents were forced to obtain out of district therapy services from Children’s Therapy Associates at a cost of eighty ($80) dollars per hour. Because Millis failed to provide the required therapy, and failed to identify a qualified provider capable of providing speech therapy in accordance with rate setting guidelines, the Parents should be reimbursed for the actual cost of the services they procured.
Although there is no dispute that the Parents are entitled to be reimbursed for the three (3) hours of speech and language therapy they procured independently, that entitlement extends only to reimbursement at the rates for said service established by the Division of Health Care Finance and Policy (Division).
The Parents’ Request for Hearing and Advisory Opinion was received by the Bureau of Special Education Appeals on December 1, 1998. On December 8, 1998, the Parents were notified that Millis had not consented to the Advisory Opinion Process and that, consequently, their request would be processed as a Request for Hearing. Conference calls were conducted with the Parties on January 4 and 8, 1999. On January 11, 1999, counsel for Millis filed a Joint Motion for Summary Judgement . The Parents’ advocate filed an independent memorandum on January 11, 1999. The Hearing Officer conducted a conference call with the Parties on February 1, 1999. A Hearing on the Joint Motion for Summary Judgement was conducted via the telephone on February 4, 1999. With all outstanding issues other than that of the rate for reimbursement having been settled by the Parties, the Parties agreed that the Joint Motion for Summary Judgement would be treated as a request for decision based upon written documents pursuant to Bureau of Special Education Appeals Hearing Rule 11.
STATEMENT OF THE EVIDENCE
1. The Student is a twelve (12) year old female (DOB 4/24/86). (P-2) She is described as hard- working and conscientious. (P-2)
2. The Student has received special education services through the Millis Public Schools (Millis) since the first grade. (P-2)
3. She is currently in the seventh grade at the Millis Middle School where she receives special education services pursuant to a Millis IEP. (P-2)
4. The Student’s December 1997- December 1998 IEP provided for her to receive speech and language therapy services for forty-five (45) minutes each week. (Stipulated Facts, P-1)
5. Millis was unable to secure the services of a licensed speech and language pathologist from approximately December 1997 through December 1998. (Stipulated facts, P-2)
6. On April 16, 1998, the Parents filed a complaint with the Massachusetts Department of Education alleging that Millis had failed to provide the speech and language services set forth in the 1997-1998 IEP. The Parents also claimed that Millis had failed to inform them that said services were not being provided. (P-4)
7. On July 22, 1998, the Massachusetts Department of Education’s Office of Program Quality Assurance found that the Student did not receive speech and language services as called for in the 1997-1998 IEP and that Millis had failed to send the Parents a letter indicating that speech services were not being provided. (P-4)
8. On August 18, 1998, the Student’s mother requested that Millis contact her prior to the start of the 1998-1999 school year to resolve the issue of speech and language services. (P-5) Millis did not respond to the Parent’s request. (Parent)
9. On November 17, 1998, the Student’s mother spoke with George Scollins, Pupil Personnel Services Director for the Millis Public Schools, about the provision of the speech and language therapy. (Parent) The Parent identified Susan Fouracre of Children’s Therapy Associates in Natick, MA, as a provider of speech therapy services and informed him of her intent to obtain out of district speech therapy services for the Student. (Parent)
10. On November 18, 1998, Mr. Scollins spoke directly with Ms. Fouracre about her rate for therapy services. Mr. Scollins informed Ms. Fouracre of Millis’ policy of abiding by the rates for services established by the Division of Health Care Finance and Policy. (Scollins)
11. Mr. Scollins spoke again with Ms. Fouracre on November 23, 1998, and reiterated his position on the rates to be charged for speech therapy services. (Scollins)
12. Mr. Scollins testified that on December 1, 1998, he spoke with the Parents’ advocate, Ms. Sauro, and informed her that services obtained independently by the Parents would be reimbursed only in accordance with rate setting guidelines. (Scollins) Ms. Sauro testified that Mr. Scollins did not explain the rate setting guidelines nor did he identify the actual rate set for restorative speech therapy services. (Sauro)
13. On December 1, 8, and 12, 1998, the Student received speech and language therapy for 60 minutes each day at Children’s Therapy Services. Children’s Therapy Associates billed the Parents at a rate of eighty ($80) dollars for each hour of therapy provided for a total of $240. (P-3)
14. George Scollins spoke with Susan Fouracre again on December 3, 1998. (Scollins)
15. On December 3, 1998, Ms. Sauro placed a call to the Millis guidance counselor to request a list of eligible providers of speech and language therapy. Ms. Sauro was informed that Millis did not maintain such a list and that if there was such a list of speech therapists, Millis would be hiring them. (Sauro)
16. A TEAM meeting was held on December 10, 1998. Following this meeting, Mr. Scollins met with the Parents and Ms. Sauro to discuss the requirement that independently obtained service providers abide by the rates set by the Division. Mr. Scollins informed the Parents that the rate established for restorative speech therapy is $35.50 per hour. (Scollins, Sauro)
17. Millis hired a licensed speech and language pathologist on or about January 5, 1999. (Stipulated facts)
18. The Student is currently receiving one (1) extra session of speech therapy per week to compensate for services Millis failed to provide from December 1997 to December 1998. (Stipulated facts)
19. On December 14, 1998, the Parents’ advocate, Ms. Sauro, sent a letter to the Hearing Officer and the School summarizing the issues in dispute. (S-2, P-1) Ms. Sauro stated therein that the Parents had arranged for private therapy services at Children’s Therapy Associates at a rate of $80 per hour. She further indicated that, as a result of Millis’ failure to provide any speech therapy services since December 1997, the Parents had “no other alternative than to seek and provide the therapy which is so needed.” (S-2, P-1)
20. On December 15, 1998, Millis’ counsel wrote to the Parents to inform them as to their options for obtaining speech therapy. Attorney Sowyrda stated that the Parents could: 1) obtain the services referenced in the Student’s IEP from an out of district therapist or, 2) wait for Millis to hire a speech and language pathologist, at which time the Student would receive compensatory services or, 3) arrange for out of district therapy while also receiving compensatory services upon the hiring of a speech and language pathologist by Millis. Attorney Sowyrda further indicated that if the Parents chose to obtain out of district therapy services, Millis would be limited, by regulation, to fund said therapy services at the prescribed Division of Health Care Finance and Policy rate. (S-3)
FINDINGS AND CONCLUSIONS
There is no dispute that this Student has special needs as defined by M.G.L. 71 B and 20 U.S.C. §1401 et seq , and is thus entitled to a free appropriate public education. There is also no dispute as to this Student’s need for speech therapy and Millis’ obligation to provide this service under the 1997-1998 IEP. That Millis failed to provide speech therapy services for the duration of the 1997-1998 IEP is also uncontested. At issue in this proceeding is the question of at what rate Millis is required to reimburse the Parents for out of district speech therapy services the Parents procured independently. The Parents assert that they should be reimbursed for the actual cost of the services obtained. Millis contends that it is obliged only to reimburse the Parents at the rate established for restorative speech therapy by the Division of Health Care Finance and Policy (Division). 114.3 CMR 39.04. After careful consideration of the evidence presented in this matter, in the context of applicable state and federal statutes, regulations and case law, I find that Millis is obligated to reimburse the Parents for the actual (out of pocket) cost of the services rendered at Children’s Therapy Associates, to wit: $240. My reasoning follows:
It is well settled that school districts may be required to reimburse parents for the costs of privately secured special education programming when a school district fails to offer appropriate educational services. Burlington School Committee v. Department of Education , 471 U.S. 359 (1985). Initially, I find that Millis did fail to offer appropriate educational services to the Student. (Stipulated Facts, P-1, P-2, S-2, P-4, P-5, Parent, Scollins) The Student’s 1997-1998 IEP provided for her to receive speech and language therapy for forty-five (45) minutes per week. (Stipulated Facts, P-1, S-2, P-4). Due to a lack of available staff however, the Student was not provided with this service for almost an entire year. (Stipulated Facts, P-1, S-2, P-5, Scollins) While Millis did make efforts to hire a speech and language pathologist, this does not change the fact that the Student was not provided with a service identified as necessary by her TEAM in the 1997-1998 IEP and was, thereby, denied the special education services to which she was entitled. (Scollins, P-4) The evidence also reflects that Millis failed to properly notify the Parents that said service was not being provided. (P-4)
After not having been provided with speech therapy for almost a year, the Parents took it upon themselves to obtain the necessary services. (P-1, Parent) They notified Millis prior to purchasing these services and immediately terminated the out of district services upon Millis’ hiring of a speech pathologist. (Scollins, Parent) Although Mr. Scollins had a number of conversations with the speech therapy provider identified by the Parents, Children’s Therapy Associates, the evidence reflects that Millis neither contracted with that provider nor did Millis suggest alternative providers to the Parents. (Scollins, Sauro, Parent). While Millis’ counsel did, in her letter of December 15, 1998, inform the Parents of the rates established by the Division, this letter was written only after the last of the three (3) therapy sessions had been delivered and after the 1997-1998 IEP had lapsed. (S-1, P-2)
Under the circumstances presented by this case, I find that Millis is obligated to reimburse the Parents for the full and actual cost of the speech therapy they obtained independently. Millis failed to provide this Student with the speech services to which she was entitled under the 1997-1998 IEP. As a result of Millis’ failure to provide appropriate educational services, the Parents were faced with no alternative but to locate an out of district speech therapist to deliver the service deemed necessary by the Student’s IEP TEAM. Burlington School Committee v. Department of Education , 471 U.S. 359 (1985). Upon the identification of Children’s Therapy Associates by the Parents, Millis responded only by informing the Parents and provider that they would have to abide by the rates set by the Division. Millis did not contract with Children’s Therapy Associates nor did Millis contract with, or even identify, any alternative providers. Under these circumstances, Millis’ insistence that the Parents be reimbursed only at the rates established by the Division is unreasonable and inequitable. While the rate setting guidelines prevent governmental units from contracting for services at rates in excess of those established by the Division (114.3 CMR 39.01, 39.02), the rates established by the Division may not be used by a school district to limit liability where it fails to provide services set forth in an agreed upon IEP and then takes no action to obtain, or even identify, a substitute service provider. Accordingly, I find that Millis is obligated to reimburse the Parents for the actual cost of the services delivered by Children’s TherapyAssociates.
Millis Public Schools shall reimburse the Parents for the actual cost of the services delivered by Children’s TherapyAssociates, to wit: $240.
By the Hearing Officer
March 9, 1999
It is unreasonable for Millis to fail to provide a service set forth in an agreed upon IEP, to fail to notify the Parents of its inability to provide this service, to fail to provide the Parents with a list of , or referral to, eligible out of district service providers willing to provide the therapy in accordance with rate setting guidelines, then to deny the Parents reimbursement for the actual cost of services which Millis should have been delivering anyway.