I.G. and Attleboro Public Schools – BSEA #03-2722
COMMONWEALTH OF MASSACHUSETTS
BUREAU OF SPECIAL EDUCATION APPEALS
In re: I. G. and Attleboro Public Schools
RULING ON PARENT’S MOTION TO DISCLOSE
Parent filed two motions to compel the Attleboro Public Schools (Attleboro) to allow her to directly communicate with Attleboro regarding her son’s special education program; to disclose what testing instruments were used; to provide certain evaluation reports; to disclose raw scores and copies of the protocols used in the test administrations; to disclose the certification status of the reading specialist; to amend the January 13, 2003 IEP to include the language agreed upon at the February 24 th , 2003 meeting; to allow an observation of the Academic Learning Center located at the Wamsutta Middle School; and to fund the independent neuro-psychological examination previously requested.
The BSEA ordered that the parties submit a joint status report by April 3, 2003, addressing the matters raised in Parent’s Motion to Compel, stating whether each matter raised has been resolved, and if not, what issues remain unresolved.
The parties submitted two separate status reports. Attleboro referenced the filing of its Oppositions of the Attleboro Public Schools’ to the various Motions filed by the advocate. Further, Attleboro stated that the Motion to Disclose Testing Instruments is moot, because at the TEAM meeting, the evaluation summaries referencing the testing instruments were provided. Finally, Attleboro referenced the March 31, 2003 telephonic conference wherein the parties addressed and resolved the issue regarding the observation of Student in his current program. That is, Attleboro will allow for such observation by Parent’s chosen neuro-psychologist. It is assumed that any issues not raised in this status report, are resolved and therefore require no ruling by the BSEA. Attleboro states its Oppositions as follows:
· It should not be ordered to disclose the raw scores and protocols relevant to the testing, arguing that such are not within the definition of student records subject to the FERPA regulations. Further, Attleboro notes that the raw scores and protocols are in the personal files of the evaluator, and therefore, not subject to disclosure, and finally, that disclosure of the protocols would violate the federal copyright laws and would undermine the integrity of the test;
· The motion to amend the rejected portions of the IEP is not properly before the Bureau, for such amendment has nothing to do with the hearing process, and therefore, is not within the jurisdiction of the Hearing Officer; and further, that the issue is moot, given the April 2 nd , 2003 TEAM meeting wherein a new IEP was developed;
· The motion to allow observation of the Academic Learning Center, is not properly before the Bureau, for an observation of such by the advocate is not in preparation for the hearing, and therefore, not within the jurisdiction of the Hearing Officer;
· It should not be required to fund the neuro-psychological evaluation, for Parent obtained such without first requesting funding, without stating the evaluation with which it disagreed, and more than sixteen months after Attleboro conducted its March of 2001 evaluation; and
· It should not be required to disclose the reading specialist’s certification, for she is not an employee of Attleboro, and therefore, Attleboro is not in possession of such.
Parent submitted her status report, and in so doing, requested that the Hearing Officer order a diagnostic educational placement at the Academic Learning Center in the Wamsutta Middle School. She bases such request on an assertion that Attleboro has violated time lines and failed to attempt informal resolution of the matter. She further references the April 1, 2003 TEAM meeting, asserting that it is apparent from the April 1, 2003 TEAM meeting, that the current placement is not appropriate, and that Student requires small group learning with intense interventions. It is assumed that any issues not raised in this status report, are resolved and therefore require no ruling by the BSEA.
Parent’s Motions to Compel are GRANTED IN PART, AND DENIED IN PART , as follows:
Parent’s Motion to Compel disclosure of the test instruments is GRANTED to the extent that any further testing is required, for apparently, the testing was only partially consented to. However, if the testing is complete, then the Motion is moot. Clearly, given the mandate for parental consent to evaluations, and given the mandated requirements for testing, parent has the right to know about the proposed testing in order that her consent be informed. See 34 CFR §300.532, §300.500(b), and §300.503(b).
Parent’s Motion to Compel the disclosure of the raw scores and protocols is DENIED at this time, due to the concerns regarding the test validity if released. However, if, for cross-examination purposes during the hearing, such becomes necessary, Parent may renew her request. That the scores and protocols are not part of Student’s record, or are in the personal files of the evaluator, are insufficient reasons to deny Parent’s motion, if such information is not privileged and is necessary for the due process proceedings.
Parent’s Motion to Compel Attleboro to amend its proposed IEP is DENIED ; without an evidentiary hearing, such an order would be premature.
Parent’s Motion to allow an observation of the Academic Learning Center is GRANTED in so far as it is needed to prepare for the hearing. Thus, the Parent and/or an expert witness must be provided access to the program. To deny this would be to deny the Parent her right to necessary discovery in preparation for the hearing.
Parent’s Motion to Compel the funding of the January 11 – January 25, 2003 independent neuro-psychological evaluation by Ellen Chamberlain-Coste, is GRANTED. Federal and state law require that a school district must fund independent evaluations, if requested to do so, unless it seeks a due process hearing within five days to contest its responsibility. Because Attleboro failed to do so, it is now obligated to comply with Parent’s request. Attleboro’s defense is without merit. Contrary to its position, the law does not require Parent to seek public funding prior to obtaining the evaluation. Further, unless Parent is invoking the fee sliding option (which she is not), the law does not require Parent to request the independent evaluation within 16 months.1 The request need only be in response to a disagreement regarding the school’s evaluation. Finally, federal law mandates that Parent need not state her reason for objecting to the public evaluation that she is contesting.2 Rather, the law requires the school district to fund the evaluation unless it initiates a due process hearing without unnecessary delay – and under state law, this must be within five school days.3
Parent’s Motion to Compel disclosure of the reading specialist’s credentials is DENIED at this time. In the interest of informed consent, Parent has the right to know the credentials of the evaluator in order to know if he/she is qualified. Clearly, Attleboro is responsible for providing whatever credential information that they relied on in determining her qualified to evaluate Student. However, assuming that has been provided, it is unclear whether Attleboro has a duty to seek from the reading specialist any further credential information. Such would depend on a fact-specific inquiry; clear legal control may not be the only factor in determining responsibility. For instance, the nature of the relationship between Attleboro and the reading specialist, their respective interests, good faith effort, etc. are factors held relevant for determining a party’s responsibility under Fed. R. Civ. P. 34 and Rule 34 (a) of the Massachusetts Rules of Civil Procedure, to produce documents in the “possession, custody or control” of the opposing party. See Strom vs. American Honda Motor Co ., 423 Mass. 330 (1996). Given the fact that Parent can independently seek the information from the reading specialist, and given the lack of relevant information relevant to Attleboro’s responsibility to produce, Parent’s Motion to Compel disclosure of the reading specialist’s credentials is denied at this time. However, in denying Parent’s Motion, Attleboro must be cautioned against submitting at the hearing any evidence not produced regarding her credentials.
Parent’s request that Student’s educational placement be changed prior to an evidentiary hearing is DENIED. If Student were without any educational program, or if Student were unsafe in the current setting, Parent would have a right to an emergency hearing. Such is not the case here. Thus, the issue of appropriate programming will be addressed during the hearing on May 1, 2003.
By the Hearing Officer,
Sandra W. Sherwood
Date: April 7, 2003
See 603 CMR 28.04(5)(d). The state law’s reference to sixteen months refers only to independent evaluations sought under the sliding fee scale set out in paragraph (c) of this section. Such does not apply to the applicable paragraph (d) of the same section, for that paragraph parallels the federal law that has no such sixteen-month limitation.
“If a parent requests an independent educational evaluation, the public agency may ask for the parent’s reason why he or she objects to the public evaluation. However, the explanation by the parent may not be required and the public agency may not unreasonably delay either providing the independent educational evaluation at public expense or initiating a due process hearing to defend the public evaluation” (bold type added) See 34 CFR 300.502(b)(4)
See 34 CFR 300.502(b)(2), 603 CMR 28.04(5)(d).