CPS Public Schools – BSEA # 11-8996
COMMONWEALTH OF MASSACHUSETTS
Division of Administrative Law Appeals
Bureau of Special Education Appeals
In Re: CPS Public Schools
BSEA # 11-8996
This decision is issued pursuant to the Individuals with Disabilities Education Act (20 USC 1400 et seq .), Section 504 of the Rehabilitation Act of 1973 (29 USC 794), the state special education law (MGL c. 71B), the state Administrative Procedure Act (MGL c. 30A), and the regulations promulgated under these statutes.
A hearing was held on September 2, 2011 in CPS, MA before William Crane, Hearing Officer. Those present for all or part of the proceedings were:
Shannon G. Occupational Therapist, CPS Public Schools
J. M. Director of Special Education, CPS Public Schools
Alisia St. Florian Attorney for CPS Public Schools
Darlene Coppola Court Reporter
The official record of the hearing consists of documents submitted by the CPS Public Schools (CPS) and marked as exhibits S-1 through S-8; and approximately one and one-half hours of recorded oral testimony and argument. Parents did not submit any documents. Written closing arguments were due on September 15, 2011.1 CPS filed a closing argument by that date. Parents did not file a closing argument.2
The issues to be decided in this case are the following:
1. May CPS conduct an occupational therapy evaluation of Student?
2. Is CPS required to provide Student with compensatory occupational therapy services for 11 sessions of missed services?
Through this Decision, I will also address the following two motions filed by Parents:
(1) Motion to Request Hearing at Time and Location Parents are able [to] Participate
and (2) Motion to Compel and Comply: Requested Documents and Full Respond [sic] to Interrogatories.
On June 9, 2011, CPS filed its hearing request with the Bureau of Special Education Appeals (BSEA). The BSEA’s June 10, 2011 Notice of Hearing scheduled the hearing to proceed on June 28, 2011. Parents’ response to the hearing request was dated June 16, 2011 and was received by the BSEA on June 20, 2011.
By request received June 17, 2011, Parents asked that the hearing date of June 28, 2011 be postponed because they would not be able to attend. By letter of June 17, 2011, CPS stated that it was prepared to proceed to hearing on the scheduled hearing date of June 28 th . On June 20, 2011, I issued an order allowing Parents’ postponement request and advising the parties that the BSEA would schedule a conference call in order to address scheduling issues.
Through a letter dated June 13, 2011, Parents requested reassignment of the Hearing Officer, which I considered to be a motion to recuse. Parents took the position that I had shown bias in earlier BSEA disputes (in which they were a party and I was the Hearing Officer) and through my actions in the instant dispute. I denied the motion by ruling dated July 7, 2011.
On June 20, 2011, Parents filed a motion for dismissal and sanctions, which I denied without prejudice by ruling dated July 28, 2011.
On June 20, 2011, Parents filed a motion to compel certain discovery responses, and CPS filed a motion for protective order on July 21, 2011. Through my order of July 28, 2011, I directed the parties to provide further response or argument by August 12, 2011 after the parties attempted to resolve the discovery dispute informally. By ruling of August 16, 2011, I denied CPS’s request for a protective order except for those communications protected by the attorney-client privilege, and I directed CPS to complete its discovery responses so that Parents would have the information requested when they returned from vacation on August 26, 2011.
On July 15, 2011, a scheduling conference call occurred with Parents3 , CPS’s attorney and BSEA Director BSEA Reece Erlichman (I was on vacation). During that conference call, the first mutually-convenient date for the parties was identified as September 2, 2011, and, at Parents’ request, Ms. Erlichman scheduled an in-person prehearing conference on that date. Parents took the position that their first available day for hearing was October 14, 2011 and requested that the hearing be scheduled on this date. Declining to extend the hearing date into mid-October, Ms. Erlichman scheduled a hearing date for September 19, 2011.
Ms. Erlichman then sent out a Scheduling Memorandum memorializing these dates, as well as the following information relevant to the conference call. Ms. Erlichman noted that I had instructed her to limit the call to scheduling a hearing date (as compared to scheduling a pre-hearing conference), that she scheduled the pre-hearing to accommodated Parents’ request, and that CPS strenuously objected to the scheduling of a pre-hearing. The Scheduling Memorandum further stated that Ms. Erlichman’s attempts to schedule a mutually agreed- upon hearing dated “did not prove fruitful”. Ms. Erlichman’s Memorandum explained as follows. Parents sought to have the hearing no sooner than October 14, 2011, arguing that they could not be available until then. CPS, as the moving party, objected to Parents’ proposed “three month scheduling hiatus”. Finding that CPS’s objection was persuasive that the hearing should not be postponed until October 14 th but without any other date provided by Parents, Ms. Erlichman explained that she selected September 19, 2011 as the hearing date, based upon my schedule and CPS’s availability.
In a response dated July 15, 2011 (and received by the BSEA on July 18 th ) to Ms. Erlichman’s Scheduling Memorandum , Parents requested that I postpone the scheduled hearing date of September 19, 2011 because of Father’s unavailability. Parents took the position (and they have stated at other times) that they are only available on Fridays, and September 19 th was a Monday.
Parents’ July 15 th response stated further their availability for a pre-hearing conference (but not a hearing) in CPS, MA, on September 2, 2011:
We have also offered September 2 nd from 10:00-11:30 for a pre-hearing conference in CPS. Note that we will not be in a position to spend more than 1 ½ hour on September 2 nd . While Attorney St. Florian stated today that she anticipated that Hearing Officer Crane will issues [sic] on [sic] order to change the 9/2 pre-hearing conference to a hearing date, this will not be doable for us given our family and work commitments.
Parents further noted in their response that they would be out of town from August 8 th through August 26 th .
In response to Parents’ July 15 th request, I issued a ruling dated July 28, 2011. In that ruling, I noted that CPS filed its request for hearing on June 9, 2011, that a party filing a hearing request has the right to a prompt hearing without undue delay, and that this is particularly true when, as in the current dispute, the issues presented in the hearing request are narrow in scope and should be able to be addressed through an evidentiary hearing of approximately a half day. Because I understood Parents to be available on September 2, 2011 at least for purposes of a pre-hearing conference, because Parents were not available on September 19, 2011 since it was not a Friday, because Parents had taken the position that no other date (until October 14, 2011) was possible for them, and because I determined that CPS had the right to have this dispute heard prior to an October 14, 2011 hearing date, my July 28 th ruling changed the pre-hearing to a hearing on September 2, 2011, and I cancelled the September 19, 2011 hearing date. My expectation was, notwithstanding their position to the contrary, that one or both Parents could make themselves available for a hearing on September 2 nd .
By request dated August 8, 2011 (and received by the BSEA on August 10, 2011), Parents objected to my July 28 th ruling, writing as follows:
Parents are again providing notice that we are unable attends [sic] the Hearing that Officer Crane has just rescheduled for September 2, 2011. As we communicated with Ms. Reece Erlichman during the July 15, 2011 phone scheduling call, [Father] will not be available for a full-day of hearing on September 2, 2011. … In addition, the Parents’ witnesses will also not be available on September 2 …. If the Hearing is held on that date, we request a subsequent date be scheduled where Parents can cross-examine CPS’s witnesses and call our own witnesses ….
Parents filed another submission dated (and received) August 11, 2011, stating that they were “leaving [on vacation] in a matter of hours”, that they would be on vacation from August 11, 2011 through August 27, 2011, and that they would not be able to receive any mailings or other correspondence in this case until their return from vacation.
On August 5, 2012, Parents filed their own hearing request and made certain additional requests with respect to the instant dispute. Parents sought consolidation of their hearing request with CPS’s hearing request, and therefore, Parents’ hearing request was assigned to me. Through a ruling of August 16, 2011, I denied Parents’ request to consolidate the two cases. Parents made a further request that I recuse myself, which request I denied through my August 16 th ruling.
In my August 16 th ruling, I also denied Parents’ request to postpone the September 2, 2011 hearing. I noted that because of the limited nature of the issues raised by CPS, it was reasonable to expect that these issues could be addressed through a few hours of hearing, rather than a multi-day hearing as envisioned by Parents, and it was reasonable to expect that the BSEA should be able to resolve these issues without undue delay, rather than postponing the hearing for a period of many months.
My August 16 th ruling further noted that it was my expectation that Father’s work commitments would be postponed as necessary so that both Parents could attend the entire hearing day, and that Parents must make every effort to have their witnesses available to testify on the scheduled hearing date of September 2 nd , either in person or by conference call, and, if necessary, during any part of the day or early evening . I also denied, without prejudice, Parents’ request for an additional hearing day, and explained that I would be willing to reconsider this and schedule an additional hearing day if, at the end of the September 2 nd hearing day, Parents demonstrated that their witnesses were unable to testify on September 2 nd and that Parents would be substantially prejudiced without an additional hearing day.
Witness list and proposed exhibits were required to be filed by August 26, 2011. Parents have filed no witness list or proposed exhibits. Instead, on September 1, 2011, Parents filed a statement with a request to place their statement in the record. Parents’ statement, which was in the form of an email to the CPS Director of Special Education (with an additional message to me) took the position that in order to have a “fair” hearing that would respond to CPS’s proposed exhibits and witness list, the following persons would need to testify: Architects for Learning staff, Irene Gibbons (an integrated occupational therapist), 5 th grade teachers, and “[e]valuators who wrote reports related to [Student] this year.” The e-mail further took the position that CPS’s discovery responses were “incomplete, evasive and none-responsive [sic].” Parents’ September 1 st submission did not request that the BSEA make any ruling or issue any order. Parents’ submission made no reference to their being unable to attend the hearing on September 2 nd , nor did it request postponement of the hearing.
Neither Parent appeared for the hearing, which was scheduled to begin at 9:30 AM on September 2, 2011 in CPS, MA. At approximately, 9:45 AM, I telephoned Parents at their home number and left a message that the hearing would begin soon and I asked that Parents telephone me as soon as possible. At approximately 9:50 AM, I left a similar message on Mother’s cell phone. In accordance with BSEA Hearing Rule XF, which allows a BSEA hearing to proceed under these circumstances, I commenced the hearing shortly after 10:00 AM. At approximately 11:15 AM, which was shortly after the completion of CPS’s presentation of its witnesses and the close of the evidentiary record, Father called, stating that he was in New Jersey and that he was objecting to the hearing going forward. When I asked Father if he knew where his wife (Student’s Mother), he said that he did not know. I advised Father that he would have the opportunity to file a written objection, as well as a closing argument, by September 15, 2011, and that I would be sending Parents a tape recording of the September 2 nd hearing.
Later on September 2, 2011, I issued an order, stating that by September 15, 2011, the parties should file any written closing argument and also by that date, Parents may file an objection to the hearing proceeding without them and a request that the evidentiary record remain open so that Parents would have an opportunity to cross-examine CPS’s witnesses, to present their own witnesses and to make an opening oral argument, all as part of the evidentiary record. I also stated in the order with respect to Parents’ request: “Their written submission shall explain why Parents failed to appear or otherwise participate in the hearing.” This requirement was made so that I would be able to determine whether Parents had good cause for not appearing at the September 2 nd hearing.
On September 12, 2011, Parents filed a Motion to Compel and Comply: Requested Documents and Full Respond [sic] to Interrogatories ( Motion to Compel and Comply ) essentially for the purpose of requiring CPS to fully comply with Parents’ discovery requests and to sanction CPS, including dismissal of the instant proceedings, as a result of CPS’s alleged failures to provide full discovery. This Motion is addressed (and denied) in the last part of the instant Decision.
On September 14, 2011, Parents filed a Motion to Request Hearing at Time and Location Parents are able [to] Participate , essentially for the purpose of keeping the evidentiary record open so that Parents would have an opportunity to cross-examine CPS’s witnesses and present their own witnesses and arguments. On September 19, 2011, CPS filed an opposition to this Motion. Parents’ Motion is addressed (and denied) in the last part of the instant Decision.
Student’s Profile and Current IEP
Student, who is entering the 6 th grade in the CPS Public Schools, lives with his Parents in CPS, MA. Student displays strengths in math, reading comprehension, social studies and science. He has been identified as having a Specific Learning Disability in the area of written expression. Exhibit S-3.
Student’s currently-proposed IEP, which has been fully accepted by Parents, covers the period from May 27, 2011 to May 26, 2012. This IEP calls for the following pull-out services: occupational therapy from an independent service provider for one hour per week and written expression instruction from a special education teacher for 45 minutes, three times per week. The IEP also calls for inclusion special education services by a special education teacher or tutor to address English language deficits for 45 minutes, three times per week. Finally, the IEP includes consultation to the regular education and special education teachers for 15 minutes per week. Exhibit S-3.
In September 2006, CPS evaluated Student for purposes of determining his need for occupational therapy services. CPS’s evaluation recommended that occupational therapy services be provided to address Student’s deficits regarding visual motor integration and letter formation. The IEP Team determined that Student should receive occupational therapy services, and since then, he has been receiving occupational therapy services pursuant to an IEP. Testimony of J.M.; exhibit S-7.
Student’s next (and most recent) occupational therapy evaluation was an independent evaluation conducted at Parents’ request at Children’s Hospital Boston in November and December 2008. The evaluation recommended that, due to Student’s visual motor planning difficulties and below average graphomotor skills, occupational therapy services should continue. This evaluation did not include input from teachers or other staff at CPS and therefore could not consider Student’s actual functional abilities within the classroom. Student continued to receive occupational therapy services from CPS pursuant to his IEP. Testimony of J.M., Shannon G.; exhibit S-5.
Starting in September 2009, CPS began delivering occupational therapy services to Student through an independent service provider chosen by Parents and approved by CPS, rather than through a CPS employee. This arrangement, which was agreed to by CPS and Parents, was reflected within the service delivery grid of the IEP (the IEP expressly provided that these services were to be provided by an independent service provider but did not name a specific provider). The most recent IEP, which reflects this arrangement, is the currently-proposed (and fully accepted) IEP for the period 5/27/11 to 5/26/11, which calls for one hour per week of occupational therapy services. Testimony of J.M.; exhibit S-3.
Since June 2009, the independent service provider that has been providing occupational therapy services to Student was the Architects for Learning (AFL). In April 2011, AFL terminated its contract with CPS. Because CPS did not have another independent service provider immediately available to provide these services to Student, CPS proposed (in a letter to Parents dated April 11, 2011) that it deliver the services through its own occupational therapist (S.G.). Ms. G. is a registered and licensed occupational therapist with 19 years experience. CPS also made clear its willingness to continue to provide occupational therapy services through an independent service provider if such a provider could be identified by Parents and CPS determined that the provider can deliver appropriate services. Testimony of J.M.; exhibit S-1C.
To date, CPS and Parents have not found an appropriate independent service provider for this purpose. And, Parents have not made Student available to receive occupational therapy services from Ms. G., with the result that Student has not received 11 sessions of occupational therapy that are called for on his IEP from April 11, 2011 to the end of the 2010-2011 school year. Testimony of J.M.
At issue in this case is whether CPS should be responsible for providing compensatory occupational therapy services under these circumstances.
Immediately prior to its termination of services, AFL provided an occupational therapy progress report dated April 10, 2011. The report noted that handwriting “poses less of an impediment to [Student’s] spontaneous text production than his ability to attend and apply his abilities during all types of tasks requiring writing. … [Student] demonstrates difficulty with word retrieval for generating specific ideas.” Exhibit S-1B (page 2, 1 st par.).
Ms. G. reviewed this progress report and testified that it may indicate that Student no longer requires direct occupational therapy services to access the curriculum or make educational progress. She opined that in lieu of direct services, occupational therapy consultation to Student’s IEP Team may be appropriate. Ms. G. further testified that, according to this progress report, Student may continue to have written language deficits, but that any deficits in this area would not be addressed through occupational therapy services. Testimony of G.; exhibit S-1B.
No occupational therapy evaluations have been conducted since the Children’s Hospital evaluation in 2008. CPS’s last occupational therapy evaluation of Student was in 2006.
At issue in this case is whether CPS should be allowed to conduct an occupational therapy evaluation at this time. Student’s three-year re-evaluation is due to be completed in the spring of 2012. Parents seek to have the occupational therapy evaluation delayed until then. CPS asks that the occupational therapy evaluation occur now.
It is not disputed that Student is an individual with a disability, falling within the purview of the federal Individuals with Disabilities Education Act (IDEA)4 and the Massachusetts special education statute.5
The IDEA was enacted “to ensure that all children with disabilities have available to them a free appropriate public education [FAPE] that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living.”6 FAPE must be provided in the least restrictive environment.7
In order for a student to receive FAPE, related services (for example, occupational therapy services) are required to the extent that those services are necessary in order for the student to learn, to benefit from his special education or to gain meaningful access to his education.8
Student’s right to FAPE is assured through the development and implementation of an individualized education program or IEP.9 The IDEA requires that FAPE “be provided in conformity with the [IEP]”.10
Occupational Therapy Evaluation
The first issue is whether CPS may conduct an occupational therapy reevaluation of Student at this time.
Massachusetts special education regulations relevant to reevaluations provide, in relevant part, as follows:
Annual reviews and three-year reevaluations . The school district shall review the IEPs and the progress of each eligible student at least annually. Additionally, 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.11
The IDEA provides, in relevant part, as follows:
(A) In general. A local educational agency shall ensure that a reevaluation of each child with a disability is conducted in accordance with subsections (b) and (c)– (i) if the local educational agency determines that the educational or related services needs, including improved academic achievement and functional performance, of the child warrant a reevaluation; or (ii) if the child’s parents or teacher requests a reevaluation.
(B) Limitation. A reevaluation conducted under subparagraph (A) shall occur– (i) not more frequently than once a year, unless the parent and the local educational agency agree otherwise; and (ii) at least once every 3 years, unless the parent and the local educational agency agree that a reevaluation is unnecessary.12
Federal special education regulations under the IDEA further provide, in relevant part, as follows:
(a) General. 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.
(b) Limitation. A reevaluation conducted under paragraph (a) of this section–
(1) May occur not more than once a year, unless the parent and the public agency agree otherwise; and
(2) Must occur at least once every 3 years, unless the parent and the public agency agree that a reevaluation is unnecessary.13
Parental consent for reevaluations . (1) Subject to paragraph (c)(2) of this section, each public agency–
(i) Must obtain informed parental consent, in accordance with §300.300(a)(1), prior to conducting any reevaluation of a child with a disability.
(ii) If the parent refuses to consent to the reevaluation, the public agency may, but is not required to, pursue the reevaluation by using the consent override procedures described in paragraph (a)(3) of this section [referring to the due process procedures].14
I now turn to the federal case law applying these standards under the IDEA. Courts have explained that “because the school is required to provide the child with an education, it ought to have the right to conduct its own evaluation.”15 More specifically, “a school system … is entitled to up-to-date evaluative data [and] may insist on evaluation by qualified professionals who are satisfactory to the school officials.”16 “[T]here is no exception to this rule.”17 In sum, “[e]very court to consider the IDEA’s reevaluation requirements has concluded if a student’s parents want him to receive special education under IDEA, they must allow the school itself to reevaluate the student and they cannot force the school to rely solely on an independent evaluation.”18 The most recent occupational therapy evaluation conducted by CPS occurred in September 2006. Parents have never taken the position that CPS has evaluated their son after 2006. (Parents’ hearing request stated that CPS conducted its own OT evaluations in 2004 and 2006; and Parents have not contradicted this position.) Pursuant to the above-discussed case law, this one undisputed fact (that CPS has not evaluated Student since 2006) is sufficient to require that I find that CPS must be allowed to conduct an occupational therapy reevaluation notwithstanding Parents’ refusal to consent. Testimony of J.M.; exhibit S-7; Parental Response to Hearing Request , page 1.
The only other, more recent occupational therapy evaluation, which was conducted by Children’s Hospital Boson in November and December 2008, is not relevant to this analysis. As the above-referenced case law makes clear, CPS has the right to conduct its own evaluation, rather than be forced to rely on an independent evaluation. Also, CPS did not participate in any way in the Children’s Hospital evaluation. As a result, this hospital-based OT evaluation could not consider the actual impact of Student’s deficits on his ability to access the curriculum and make educational progress at school, which are relevant to the legal standards for eligibility to receive OT services, as explained above. Testimony of J.M.; exhibit S-5.
It is not difficult to understand CPS’s need for an updated OT evaluation as soon as possible. Over the passage of time, any student’s special education needs are likely to change, and perhaps to change significantly, thus the requirement within the IDEA that the IEP Team meet at least annually to review a student’s progress and educational needs, and propose a new IEP.19 CPS requires more recent evaluative information for purposes of determining whether current IEP goals related to Student’s deficits in this area are appropriate, whether the level and kind of OT services in the IEP are appropriate, and, perhaps most importantly, whether Student should remain eligible to receive OT services.20 Testimony of G.; exhibit S-1(b).
Parents’ arguments to the contrary are misplaced. Parents appear to believe that the hearing at this juncture will consider Student’s continued need for occupational therapy services, and therefore, they argue, appropriate and necessary witnesses would include Student’s recent OT service provider and his teachers. The resolution of the issue in the instant dispute is much simpler than Parents imagine. All that is necessary for me to determine at this juncture is that an occupational therapy evaluation by CPS is warranted, and this is resolved simply from the undisputed fact that CPS has not conducted an OT evaluation since September 2006. Any determination of eligibility for occupational therapy would need to occur through the IEP Team process (which would consider the results of the OT evaluation) and would be subject to a separate BSEA appeal.
For these reasons, I find that CPS is correct that it should conduct an OT evaluation at this time.
Compensatory services are essentially a discretionary remedy designed to make a student whole – that is, to make up for what was lost as a result of not having received the requisite special education services.21 Compensatory education is an equitable remedy involving discretion in determining what relief is appropriate after consideration of all aspects of the case.22
Student’s fully-accepted, current IEP provides for occupational therapy services of one hour per week to be provided by an independent service provider. As discussed in the Educational History section above, the independent service provider has been the Architects for Learning (AFL) since June 2009. In April 2011, AFL terminated its contract with CPS.
It is not disputed that when AFL terminated its contract with CPS in April 2011, no other independent service provider was immediately available. Until such time as a mutually-agreeable independent service provider could be identified, CPS proposed (in a letter to Parents dated April 11, 2011) that it deliver the services through its own occupational therapist (S. G.). Ms. G. is a registered and licensed occupational therapist with 19 years experience. It is not disputed that she is sufficiently experienced and qualified to provide Student’s OT services. However, to date, Parents have not made their son available to receive OT services from Ms. G., with the result that he has missed approximately 11 sessions of OT from April 11, 2011 through the end of the 2010-2011 school year. Testimony of J.M., S.G.; exhibit S-1C; Parental Response to Hearing Request , page 2.
Occasionally it occurs, as in the instant dispute, that specific directives within an IEP simply cannot be implemented as written. Courts have made clear that, when this happens, a school district’s obligations under the IEP may be temporarily fulfilled in other ways—for example, it may be possible to provide substantially the same services within a school district’s own program on an interim basis when the services specified in the IEP are to be provided within a private program and the private program becomes unavailable. In a comparable situation, one court explained: “a public placement is [not] inherently dissimilar to a private placement for the purpose of satisfying the school district’s obligation to provide a ‘similar’ placement, on an interim basis, when a child’s prior placement is no longer available and a new and ‘appropriate’ placement has not yet been finally determined.”23
In their response to CPS’s hearing request, Parents agreed that AFL terminated its contract with CPS and further took the position that AFL terminated “without notice and appropriate protocols of professionalism” and that CPS then did “not intervene to ensure the continuity of services with AFL.” Parents have further alleged that CPS welcomed (and perhaps actually sought) the termination of services with AFL. Parents took the position that CPS was willing to consider services from another independent service provider if Parents could find another provider, but that CPS made no effort to seek an independent service provider. Parental Response to Hearing Request , page 2.
Parents have not provided evidence to support these arguments. But, as discussed below regarding Parents’ Motion to Compel and Comply , Parents have sought, through discovery, additional emails and other communications between CPS and AFL to seek to establish that CPS contributed to (and perhaps actually caused) AFL’s contract termination. However, simply establishing that CPS caused the contract termination would not likely change the outcome of this dispute. As explained in greater detail in the discussion below regarding Parents’ Motion to Compel and Comply , CPS’s obligations under special education law and Student’s IEP are simply to provide appropriate OT services through a private service provider, not to continue working with AFL or any other particular private service provider.24
For these reasons, I find that CPS substantially complied with its IEP by offering OT services from Ms. G. on an interim basis until the parties are able to identify a mutually-acceptable independent service provider. Accordingly, I conclude that no compensatory services are due.
RULINGS ON PARENTS’ MOTIONS
Motion to Compel and Comply
On September 12, 2011, Parents filed a Motion to Compel and Comply dated September 10, 2011. The Motion seeks an order that CPS fully comply with Parents’ discovery requests and that sanctions CPS for its alleged failure to comply fully.
In their Motion, Parents take the position that CPS has not fully complied with their discovery requests seeking certain additional emails and other communications (hereafter, referred to as “emails”) between CPS (or its attorney) and AFL, which is the private service provider that had been delivering OT services to Student. Parents note their repeated requests and a BSEA order (discussed, above, in the Procedural Background section) for a complete response to their discovery requests. (Parents explain that CPS has provided certain emails but takes the position that what has been provided is not complete and is misleading.) Through their Motion, Parents seek full compliance with their discovery requests, as well as sanctions against CPS that may include dismissal of the instant proceeding.
Parents filed this Motion on September 12 th , which is ten days after the hearing (and close of the evidentiary record) on September 2 nd . Parents have provided no reason why their Motion was filed after September 2 nd .
Once the evidentiary hearing has begun (and, even more so, once the evidentiary record has closed), it becomes disruptive of the hearing process to consider a motion alleging lack of compliance with discovery. If I were to consider Parents’ Motion on its merits and then agree with Parents regarding CPS’s alleged failure to comply fully with discovery, CPS would be ordered to comply, with the possibility of sanctions in the event that it failed to do so. If Parents were provided additional emails, Parents would then, presumably, be given a new opportunity to file the additional emails as proposed exhibits. CPS would need to be provided an opportunity to provide further testimony and argument regarding the emails. This would require that the evidentiary hearing be re-opened, with at least one additional hearing day, and would likely delay the resolution of this dispute for several months.
I decline to disrupt the hearing process in this way absent compelling reasons for doing so. I therefore turn to a consideration of whether Parents may be substantially prejudiced by not being allowed to pursue the discovery of the allegedly missing emails.
Parents seek the additional emails to establish that CPS was involved in (and may actually have sought or caused) the termination of AFL as a CPS service provider. Even assuming that Parents could establish this, I find that it would not likely alter my findings and conclusions regarding the merits of this dispute. My reasoning follows.
The only possible relevance of the emails pertains to the continuation of AFL as the private provider of Student’s OT services. However, Student’s IEP does not identify a particular private service provider for purposes of delivering OT services to Student. And, under the IDEA, Parents have no ability to force CPS to contract with AFL or with any other particular service provider; nor do Parents have any authority to prevent CPS from terminating its contract with AFL.25 In other words, CPS’s obligations under special education law and Student’s IEP are simply to provide appropriate OT services through a private service provider, not to continue working with a particular private service provider. Thus, I find that even were I to find that CPS caused the contract termination, this additional fact, within the context of the case as a whole, would not likely change my resolution of the merits of this dispute.
In sum, I find that Parents’ Motion was not timely filed, and Parents have provided no justification for it being filed late. I further find that to consider the Motion at this late date would be disruptive to the BSEA hearing process, would prejudice CPS by substantially delaying resolution of the dispute, and would not likely change the outcome of the merits of this dispute. I conclude that Parents have not provided (nor am I aware of) sufficient reason for considering their Motion at this late date. The Motion will therefore be denied.
Motion to Request Hearing at Time and Location Parents are able [to] Participate
On September 14, 2011, Parents filed a Motion to Request Hearing at Time and Location Parents are able [to] Participate . Through this Motion, Parents object to this matter being heard without their being present, and seek to keep the evidentiary record open for purposes of their having an opportunity to cross-examine CPS’s witnesses and present their own witnesses and arguments. On September 19, 2011, CPS filed an opposition.
BSEA Hearing Rule XF allows a hearing to proceed when a party does not appear at a scheduled hearing, which is what occurred when Parents did not appear at the hearing on September 2, 2011.26
Parents have correctly pointed out that IDEA regulations require that hearings take place “at a time and place that is reasonably convenient to the parents and child involved.”27 These regulations further mandate that a final BSEA decision be rendered within 45 days after filing of the hearing request, with the hearing officer having the authority to grant “specific extensions of time.”28 BSEA Hearing Rules further explain that the postponement of a hearing “shall be granted only for good cause, at the request of a party.”29 These standards require a balancing between parents’ rights to participate fully in the process through the scheduling of a hearing that is reasonably convenient to them, and a school district’s right (when it is the moving party) to have a reasonably prompt resolution of the dispute.
In order to resolve scheduling disputes where the moving party seeks a timely resolution of the matter and the other party takes the position that it is not available for hearing within a reasonable timeframe, the hearing officer has no choice but to impose an expectation on parties that they rearrange work and personal obligations where it is possible to do so. When a party resists these efforts, then, in order to determine a party’s ability to rearrange its obligations and free up its schedule, the hearing officer may need to inquire into and consider the particular reasons why the party alleges unavailability.30
Beginning with the conference call on July 15, 2011 with Parents and Ms. Erlichman for purposes of scheduling a hearing date in this dispute, Parents have consistently taken the position that they are only available to attend a hearing on Fridays and that the first Friday that they are available for hearing is October 14, 2011. Ms. Erlichman determined (and I agree for reasons noted in the following paragraph) that it is not acceptable for Parents to impose unilaterally this extensive a delay in the resolution of this dispute.
First, Parents understandably have an interest in delaying for as long as possible the resolution of this dispute. The principal issue in dispute is whether an OT reevaluation may occur. It is not disputed that CPS must continue to provide OT services under “stay put” requirements until such time as the parties otherwise agree or a BSEA Hearing Officer issues an order changing CPS’s obligation to provide OT services. Prior to the BSEA considering this issue, it is necessary for CPS to conduct a reevaluation, the IEP Team would then convene to consider the reevaluation, the IEP Team would have to decide to propose a change in the IEP services and, if Parents rejected the proposal, CPS could proceed to the BSEA and seek an order. In other words, the process is stymied so long as Parents can delay CPS’s OT reevaluation. Second, the issues in this dispute are limited in scope, with the result that there is a reasonable expectation that the hearing may be completed within several hours.31 This limits the time and effort required for preparation for the hearing. Third, other than a general statement that they are not available until October 14 th because of family and work commitments, Parents have never provided a specific explanation as to what particular commitments exist and why they cannot be altered so as to avoid such a long delay in resolution of this case.
Thus, in a ruling of July 28, 2011, I concluded that it was unreasonable to delay a hearing until October 14 th . Having determined that the parties were available on September 2 nd , I changed the hearing date from September 19 th (set by Ms. Erlichman) to September 2 nd . When I changed the hearing date to September 2 nd , I understood that Mother was available that day and had no conflicts, and that Father was available for part of the day and had unspecified work commitments for part of the day. This understanding was confirmed by Parents in their July 15 th response in which they stated their availability to attend a pre-hearing in CPS, MA, on September 2 nd from 10:00 AM to 11:30 AM.
Nevertheless, in their July 15 th and other responses (described above in the Procedural Background section of this Decision), Parents continued to take the position that they could not appear at a September 2 nd hearing because of unspecified family and work commitments. My July 28 th ruling stated unequivocally that I expected Parents to adjust their family and work commitments so that they would be available for the September 2 nd hearing.
On the September 2 nd hearing day, neither Parent appeared for the 9:30 AM start of the hearing, and I made telephone calls to Parents at approximately 9:45 AM and 9:50 AM at the family’s home phone number and Mother’s cell phone number. When neither Parent answered the phone, I left telephone messages requesting that Parents call as soon as possible and that the evidentiary hearing would be starting soon. Father called back at approximately 11:15 AM, stating that he was in New Jersey and when asked by me why Mother (i.e., his wife) was not attending the hearing, he said that he did not know.
Because of the possibility that something unexpected and unavoidable had occurred that prevented each Parent from attending the hearing, I offered Parents an opportunity (through my September 2 nd order) to object to the hearing going forward without them, but I directed the Parents to explain, as part of any such objection, the reasons they had not attended the September 2 nd hearing. It is only through this explanation of their reasons that I would be able to judge whether their absence was justified.
In response to my September 2 nd order, Parents filed their Motion to Request Hearing at Time and Location Parents are able [to] Participate . In this Motion, Parents provided the following information in response to my order that they explain why they failed to appear at the September 2 nd hearing:
The reason for our lack of availability [for the September 2 nd hearing] is in the record and fully explained in the 8/11 motion and requests. One parent was traveling out-of-state for work and called the BSEA during the hearing in response to a call made by the Hearing [Officer] to Parents ½ hour before the hearing started. Parents reported on numerous occasions and in motions and requests that we were not able to attend a hearing September 2, 2011 due to extensive work and family commitments during the week returning from an extensive vacation. The reasons for this are fully in the record.
In sum, Parents’ explanation for their absence is that Father could not attend because he was “traveling out-of-state for work” and Mother could not attend “due to extensive work and family commitments during the week returning from an extensive vacation.”
On the basis of this response from Parents together with the procedural history in this case (recited above in the Procedural Background section), I find that the stated basis for Mother’s not attending the hearing was that she was busy during the week following their family vacation, but that Mother had no particular conflict or other specific obligation that precluded her from attending the entire hearing on September 2 nd . She had been prepared to attend the September 2 nd pre-hearing scheduled to start at 10:00 AM, and Parents have cited to no change in circumstances that would alter this availability. I conclude that Parents have not provided sufficient basis for me to find that there was good cause for Mother not attending the September 2 nd hearing.
I further find that Father had been able to attend part of the hearing (since he had been available to attend the September 2 nd pre-hearing scheduled to start at 10:00 AM) but for unexplained reasons, he was traveling in New Jersey during the morning of the September 2 nd hearing. Also, Father never provided an explanation as to why he could not adjust his work schedule on September 2 nd in order to attend the entire hearing. I conclude that Parents have not provided sufficient basis for me to find that there was good cause for Father not attending the September 2 nd hearing.
I note that the only specific conflict cited for either Parent’s unavailability was Father’s work commitment for part of the day on September 2 nd (presumably in the afternoon after the time of the originally-scheduled pre-hearing conference). I further find even if it turned out to be true that Father had a work commitment for part of the day on September 2 nd and that this commitment could not be changed, the Parents could have proceeded to hearing with both Parents present for the first part of the day and with one Parent present for the remainder of the day.32
Through my July 28 th ruling, I advised the Parents that they may be defaulted for failure to attend the hearing. Hearing Rule XF (quoted above in this section) permits dismissal (after sending a show cause order) under these circumstances. I decline to default Parents but I can find no basis for allowing their motion to keep the hearing open, which would require scheduling an additional hearing date to allow Parents to present evidence and cross-examine CPS’s witnesses.
I find that the evidentiary record was properly closed on September 2, 2011, that Parents should be given no further opportunity to present evidence or argue their case, and that the September 2 nd hearing properly took place without Parents’ being present. For these reasons, I will deny Parents’ Motion to Request Hearing at Time and Location Parents are able [to] Participate .
CPS shall conduct an occupational therapy reevaluation of Student.
CPS is not required to provide compensatory occupational therapy services for services missed from April 2011 through the end of the 2010-2011 school year.
Parents’ Motion to Compel and Comply is DENIED .
Parents’ Motion to Request Hearing at Time and Location Parents are able [to] Participate is DENIED .
By the Hearing Officer,
Dated: September 21, 2011
COMMONWEALTH OF MASSACHUSETTS
Division of Administrative Law Appeals
Bureau of Special Education Appeals
THE BUREAU’S DECISION, INCLUDING 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 obtain 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).
A party contending that a Bureau of Special Education Appeals decision is not being implemented may file a motion with the Bureau 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 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).
An appeal of a Bureau decision to state superior court or to federal district court must be filed within ninety (90) days from the date of the decision. 20 U.S.C. s. 1415(i)(2)(B).
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.
The date of September 15, 2011was chosen so as to be in conformance with BSEA Hearing Rule X E, which provides that “written closing arguments … shall be submitted no later than seven (7) business days after the last day of hearing unless the parties jointly request, and the Hearing Officer allows, a different time period ….” Parents sought a later date for closing argument, but CPS was unwilling to agree to a later date.
I am mindful that Parents are pro se and therefore are not likely to understand relevant legal standards and procedural requirements to the same extent as they would if they were represented by an attorney. I also note, however, that Parents, who are committed advocates for their son’s educational interests, have considerable knowledge of and experience with the BSEA due process system. Parents have litigated at least two previous disputes through the BSEA hearing process.
Both Parents participated in the conference call at the outset, but then Father hung up, and the call proceeded without his participation.
20 USC 1400 et seq .
MGL c. 71B.
20 USC § 1400(d)(1)(A). See also 20 USC 1412(a)(1)(A); Mr. I. ex rel. L.I. v. Maine School Admin. Dist. No. 55 , 480 F.3d 1, 12(1 st Cir. 2007) (referencing “broad purpose behind the IDEA: ‘to ensure that all children with disabilities have available to them a free and appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living’” citing to 20 USC § 1400(d)(1)(A)).
20 USC § 1412(a)(5). See also 20 US § 1400(d)(1)(A); 20 USC § 1412(a)(1)(A); MGL c. 71B, s. 1; 34 CFR 300.114(a)(2(i) ; 603 CMR 28.06(2)(c).
See In Re: Shrewsbury Public Schools , BSEA 10-1237 (ruling), 16 MSER 60 (2/18/10) (explaining legal standard for receipt of related services and discussing relevant case law).
20 USC 1414(d)(1)(A)(i)(I)-(III); Honig v. Doe, 484 U.S. 305, 311-12 (1988) ; Rowley, 458 U.S. at 182.
20 USC 1401(9)(D).
603 CMR 28.04(3).
20 U.S.C. 1414(a)(2).
34 CFR §300.303.
34 CFR 300.300(c).
Johnson by Johnson v. Duneland Sch. Corp . , 92 F.3d 554, 558 (7th Cir. 1996).
Dubois v. Connecticut State Bd. of Educ ., 727 F.2d 44, 48(2 nd Cir. 1984).
Andress v. Cleveland Independent School District , 64 F. 3 rd 176, 179 (5 th Cir. 1995) (“A parent who desires for her child to receive special education must allow the school to reevaluate the child using its own personnel; there is no exception to this rule.”).
M.T.V. v. Dekalb County School District , 446 F.3d 1153, 1160 (11 th Cir. 2006) (internal quotations omitted) (collecting cases).
See Honig v. Doe, 484 U.S. 305, 311, 108 S.Ct. 592, 98 L.Ed.2d 686 (1988) (“ The IEP must be reviewed and, where necessary, revised at least once a year in order to ensure that local agencies tailor the statutorily required ‘free appropriate public education’ to each child’s unique needs.”). As another court also explained:
If the IEP fails to assess the “child’s present levels of academic achievement and functional performance,” the IEP does not comply with § 1414 [of the IDEA]. This deficiency goes to the heart of the IEP; the child’s level of academic achievement and functional performance is the foundation on which the IEP must be built. Without a clear identification of Robert’s present levels, the IEP cannot set measurable goals, evaluate the child’s progress, and determine which educational and related services are needed.
Kirby v. Cabell County Bd. of Educ . , 2006 WL 2691435 ( S.D.W.Va. 2006).
I note that a recent written progress report, discussed above in the Educational History section, raises the question of whether Student continues to have deficits that should be addressed through occupational therapy services. Testimony of Granger; exhibit S-1B.
See, e.g., C.G. ex rel. A.S. v. Five Town Community School Dist. , 513 F.3d 279 , 290 (1 st Cir. 2008) (“ compensatory education is . . . a discretionary remedy for nonfeasance or misfeasance in connection with a school system’s obligations under the IDEA” ); G. ex rel. RG v. Fort Bragg Dependent Sch., 343 F.3d 295, 309 (4th Cir. 2003) (“Compensatory education involves discretionary, prospective, injunctive relief crafted by a court to remedy what might be termed an educational deficit created by an educational agency’s failure over a given period of time to provide a FAPE to a student.”); Pihl v. Mass. Dept. of Ed. , 9 F.3d 184 (1 st Cir. 1993) (“compensatory education is available to remedy past deprivations”); Lester H. v. Gilhool, 916 F.2d 865 (3rd Cir. 1990), cert. denied 499 U.S. 923, 111 S.Ct. 317 (1991) (compensatory education is intended to be “an appropriate remedy to cure the deprivation of a child’s right to a free appropriate public education”); Miener v. State of Missouri , 800 F.2d 749 (8th Cir. 1986) (compensatory education intended to cure the deprivation of a handicapped child’s statutory rights).
See, e.g., C.G. ex rel. A.S. v. Five Town Community School Dist . , 513 F.3d 279, 290 (1 st Cir. 2008) ( compensatory education is a “discretionary remedy”); Reid v. District of Columbia, 401 F.3d 516 (D.C. Cir. 2005); Pihl v. Mass. Dept. of Ed. , 9 F.3d 184, 188 n. 8 (1 st Cir. 1993).
Knight by Knight v. District of Columbia , 877 F.2d 1025, 1029(DC Cir. 1989). Courts have generally addressed this issue within the context of a student’s “stay put” rights. See also, e.g., M.K. v. Roselle Park Bd. of Educ ., 2006 WL 3193915, *10 (D.N.J. 2006) (“if a child’s then-current educational placement is not available, the school system must provide the student with placement in a similar program during the pendency of administrative and judicial proceedings on the merits of his due process challenge to the proposed IEP”); R.B. ex rel. Parent v. Mastery Charter School , 762 F.Supp.2d 745, 761(E.D.Pa. 2010) (“where a child’s then-current educational placement is simply no longer available, the LEA retains responsibility for providing the student with placement in a similar program during the pendency of proceedings”).
See Hendrick Hudson Dist. Bd. of Ed. v. Rowley, 458 U.S. 176, 208 (1982) (so long as school district has met its obligations to provide FAPE in compliance with the IEP, any decisions regarding how it does so are left to its discretion); Lessard v. Wilton-Lyndeborough Cooperative School District , 592 F.3d 267, 270 (1 st Cir. 2010) (IEP provided FAPE even though staff did not have qualifications recommended by parents’ expert).
See Hendrick Hudson Dist. Bd. of Ed. v. Rowley, 458 U.S. 176, 208 (1982) (so long as school district has met its obligations to provide FAPE in compliance with the IEP, any decisions regarding how it does so are left to its discretion); Lessard v. Wilton-Lyndeborough Cooperative School District , 592 F.3d 267, 270 (1 st Cir. 2010) (IEP provided FAPE even though staff did not have qualifications recommended by parents’ expert).
Rule XF provides as follows:
Failure to Prosecute or Defend
If a party fails to file documents required by statute or regulation, to respond to notices or correspondence, to comply with orders of the Hearing Officer, to appear at the scheduled hearing or otherwise indicates an intention not to continue with prosecution of the claim, the Hearing Officer may dismiss the case with or without prejudice through a ten (10) day Order to Show Cause, or may take evidence and issue such orders as may be necessary including, but not limited to, ordering an educational program or placement for the student.
The relevant regulations (34 CFR §300.515) provide as follows:
Timelines and convenience of hearings and reviews .
(a) The public agency must ensure that not later than 45 days after the expiration of the 30 day period under §300.510(b), or the adjusted time periods described in §300.510(c)–
(1) A final decision is reached in the hearing; and
(2) A copy of the decision is mailed to each of the parties.
(b) The SEA must ensure that not later than 30 days after the receipt of a request for a review–
(1) A final decision is reached in the review; and
(2) A copy of the decision is mailed to each of the parties.
(c) A hearing or reviewing officer may grant specific extensions of time beyond the periods set out in paragraphs (a) and (b) of this section at the request of either party.
(d) Each hearing and each review involving oral arguments must be conducted at a time and place that is reasonably convenient to the parents and child involved.
Id. These regulations make clear that because the school district filed the hearing request, the 45 days begins immediately upon filing of the hearing request. The hearing date is initially set to occur 20 days after filing of the hearing request. See BSEA Hearing Rule II A 2.
BSEA Hearing Rule III A.
See, e.g., J.D. v. Kanawha County Bd. of Educ ., 2009 WL 4730804, *13 (S.D.W.Va. 2009) (appropriate for special education hearing officer to require parent to provide more detailed explanation than that parent was “physically and psychologically ill, and under the care of a physician and psychologist” in order for hearing officer to determine whether parent’s request for postponement of the hearing should be allowed).
CPS completed its direction examination of its witnesses on September 2 nd within approximately one hour.
As a general rule, when there are two parents involved in a BSEA dispute and both parents have educational decision-making authority (as in the instant dispute), both parents attend the entire hearing. However, on occasion, usually due to scheduling conflicts, one parent will not attend some or all of a BSEA hearing. There is nothing within the BSEA Hearing Rules (or BSEA practices) that requires that both parents attend a hearing or that prejudices or otherwise limits parents when proceeding with only one parent in attendance.