Commonwealth of Massachusetts
Division of Administrative Law Appeals
Beaver of Special Education Appeals
In Re Lanesborough Public Schools
BSEA # 12-7024
Ruling on Parent’s Motion For Summary Judgment
Lanesborough Public School’s (Lanesborough) filed a Hearing Request on March 30, 2012 requesting that the BSEA find its evaluations regarding Student in the above-referenced matter comprehensive and appropriate, and as such find that Lanesborough was not responsible to fund the independent educational evaluation requested by Parent.
On April 11, 2012, Lanesborough wrote to the BSEA again requesting a finding in its favor pursuant to 603 CMR 28.04(5)(d). This letter made reference to an Amendment dated April 4, 2012 which stated
We are not in disagreement of the 400% poverty federal guidelines, we are challenging the scope of the evaluations the parent is requesting. The parent is requesting to have evaluations in areas that were not assessed during this 3 year re-evaluation cycle.
Via separate submission, Lanesborough requested a postponement of the Hearing on April 11, 2012.
Parent filed her response to Lanesborough’s Hearing Request and the Amendment on April 12, 2012. In pertinent part, Parent alleged that Lanesborough: 1) cited the wrong Massachusetts Special Education Regulation; and 2) acknowledged that Parent was eligible for public funding (assuming that Parent provided a copy of her tax returns). Parent argued that the pertinent regulation was 603 CMR 28.04(5)(c). She further stated that she was dissatisfied with the testing performed by Lanesborough as well as with its interpretation of the testing.1 As such, Parent requested a publicly-funded independent evaluation, leaving the specifics regarding the type of evaluation and what it should include to the discretion of the professional she selected to conduct the evaluation. Parent asserted that the only question before the BSEA should be whether she was eligible for public funding which she understood to be a question of law not of fact. Since Lanesborough had conceded in its Hearing Request that Parent was financially eligible for public funding, Parent argued that the BSEA should enter summary judgment on Parent’s behalf and dismiss the School’s Hearing Request.
On April 13, 2012, Lanesborough’s attorney filed a Motion to extend all timelines for responses and to postpone the Hearing, which request was granted over Parent’s objection. Parent’s Objection renewed her assertion that the sole issue before the BSEA was one of law and that since she met the 400% poverty federal guideline, she was entitled to the publicly-funded evaluation for Student. As such, Parent requested that summary judgment be entered in her favor and that the case be dismissed. Parent further challenged Lanesborough’s assertion that she was seeking testing in areas not previously evaluated by Lanesborough.
During a telephone conference call held on May 7, 2012, the deadlines for the Parties submission were set. Lanesborough was ordered to submit its response to Parent’s Motion for Summary Judgment by the close of business on Monday May 7, 2012. Lanesborough complied with this order and submitted an Opposition to Parent’s Motion for Summary Judgment on May 7, 2012. The Parties also agreed after some discussion considering a later day in May that any additional documentary submission would be made by May 14, 2012. May 14, 2012 was established as the final day for the Parties to forward their submissions in lieu of a hearing.
Lanesborough’s May 7, 2012, Opposition alleged that the family income did not meet the 400% federal guideline rendering the family ineligible for full payment of the independent evaluation. Among the documents attached to Lanesborough’s Opposition was a copy of the first page of Parent’s 2011 Parent’s 1040 U.S. Individual Income Tax Return. Lanesborough argued that Student’s family income as per the 1040 income tax form shows them to have a total income of $ 101,363 with an adjusted gross income of $ 99,883 for a family of four (SE-1). The school district further argued that according to the 2012 Poverty Guidelines from the Department of Health and Human Services, in Massachusetts the pertinent guideline for a family of four is $ 23,050 (SE-2). Accordingly, the relevant calculation is $ 23,050 x 400% resulting in $ 92,200. Since Parent’s income is over $ 92,200, Lanesborough concluded that Parent was not thereby entitled to 100% funding of the independent evaluation.
Additionally, Lanesborough argued that its evaluation was comprehensive and appropriate. It administered the Kaufman Test of Educational Achievement-2nd Edition-Comprehensive Form (KTEA-II) on January 19, 2012, and at Parent’s request, the Gray Oral Reading Test-4 (GORT-4), as well as the decoding portion of the Wilson Assessment of Decoding and Encoding on February 17, 2012.2
Lastly, in its Opposition, Lanesborough argued that Parent’s request for independent evaluation was too vague and the school could not ascertain whether Parent sought an independent evaluation in Student’s suspected area of disability or a different area. For all of the aforementioned reasons, Lanesborough disputed Parent’s right to public funding for Student’s independent educational evaluation.
Parent responded to Lanesborough’s Opposition on May 14, 2012 on the basis that: a) the School’s filing challenging funding of the independent evaluation was not timely as Parent’s request had been made during the March 27 th team meeting at which time Parent presented her pay stubs and thereafter provided a copy of her tax return forms on April 4, 2012; 3 b) was not based on the proper legal principles, arguing that although the family’s tax form listed four household members, Student’s stepfather was actually financially responsible for two, not one, children of a prior marriage and therefore the proper computation should be the aforementioned formula multiplied by five, placing the family within the federal poverty line; c) in the alternative, if multiplied by four, even if the computation was made as Lanesborough suggests, a calculation based on a household of four would place the family in the 400 to 500% federal poverty guideline and Lanesborough would still be responsible for 75% of the cost of the evaluation; and d) Lanesborough stipulated to Parent’s eligibility in its March 28, 2012 amended hearing request. Parent further expressed her concern regarding the discrepancies in Student’s school-based testing results. She explained that she was not an expert and that the determination regarding the scope of the evaluations should be made by the independent evaluator. Relying on 34 CFR 300.503(e) and 34 CFR 300.532(f) the IDEA allowed her to ask for testing in an area of suspected need and that is exactly what she was seeking.
Lanesborough filed a further submission of Opposition to Parent’s Motion for Summary Judgment on May 16, 2012. Lanesborough reiterated that the sole issue in Parent’s original Motion for Summary Judgment was whether Parent met the 400% Poverty Federal guideline. The school District also mistakenly argued that the Parties had been given until May 22, 2012, to submit additional documents. I note that while May 22, 2012 was discussed as the outermost date, at Parent’s request the date was moved up to May 14, 2012. Lanesborough is correct that an Order specifying the date was not issued.
On May 16, 2012, Parent responded to Lanesborough’s further submission of Opposition to Parent’s Motion restating the facts with which she agreed and requesting that Lanesborough’s submission of May 16, 2012 be disallowed as the deadline for all submissions elapsed on May 14, 2012 by agreement of the Parties during the telephone conference call, and arguing that no other evidence would further the Hearing Officer’s understanding of the case.
On May 24, 2012 the BSEA received additional documents dated May 21, 2012, from Lanesborough which included an affidavit by Kimberley A. Grady. Since an Order was not issued following the telephone conference call on May 7, 2012, all documents and arguments (including those dated May 21, 2012, received at the BSEA on May 24, 2012) were considered in rendering this Ruling. I note that this ruling is limited to whether Parent is entitled to public funding for an independent educational evaluation for Student.
1. Parent requested funding for an independent evaluation of Student at the Team meeting on March 27, 2012 and provided copies of her pay stubs. Parent requested that the independent evaluation be conducted at Baystate Medical Center. Parent requested that the evaluators determine which battery of tests should be administered and what the scope of said evaluation should be (Affidavit of Kimberley Grady).
2. Lanesborough determined that its evaluation addressed all areas of Student’s suspected needs and that they were comprehensive and appropriate (Affidavit of Kimberley Grady).
3. On March 30, 2012, Lanesborough filed a Request for Hearing with the BSEA challenging Parent’s request on the basis that its evaluations were comprehensive and appropriate, as well as based on Student’s passing grades. Lanesborough then amended its Hearing Request on April 4, 2012. The Amendment stated in pertinent part
We are not in disagreement of the 400% poverty federal guidelines. We are challenging the scope of the evaluations the parent is requesting. The parent is requesting to have evaluations in areas that were not assessed during this 3-year evaluation cycle.
4. In an affidavit by Kimberley Grady filed on May 21, 2012 as part of Lanesborough’s final submission, Ms. Grady states
The school determined that the parent family income did not meet the 400% poverty federal guideline … at all times relevant to this case the parent has not indicated the scope of the IEE further evaluations, and has not indicated that [it] is limited to the area of suspected disability ….
5. Parent’s 1040 U.S. Individual Income tax Return for 2011 which shows that the total family income is $ 101,363 with an adjusted gross income of $ 99,883. The form claims a total of four exemptions, specifically, Father, Mother and two minors.
6. The 2012 Federal Register Poverty Guidelines applicable to Massachusetts provides an analysis based on “Persons in Family/household”. It states that the poverty guideline for each individual in a family of four is $ 23,050. As such the relevant calculation is $ 23,050 x 400% which equals $ 92,200.
Summary Judgment entitles the moving party (Parent) to a judgment as a mater of law when all pleadings and supporting documents viewed in the light most favorable to the non-moving party (Lanesborough) present no genuine issue of material fact. Fed. R. Civ. P. 56(c), Anderson v. Liberty Lobby, Inc.,All U.S. 242, 248-50 (1986). However, if a genuine conflict of facts exists, the matter must proceed to trial to resolve the disputed fact which may potentially alter the final outcome. Calero-Cerezo v. U.S. Dep’t of Justice, 355 F. 3d 6, 19 (1st Cir. 2004).
In the case at bar, review of the documents and submissions of the Parties shows that there is no dispute of material fact. The dispute involves whether as a matter of law, Parent is entitled to full or partial funding for Student’s independent evaluation. I begin with analysis of the facts from Lanesborough’s standpoint.
Lanesborough relied on 603 CMR 28.04(5)(d), which specifically provides that
If the parent is requesting an independent education evaluation in an area not assessed by the school district, the student does not meet income eligibility standards, or the family chooses not to provide financial documentation to the district establishing family income level, the school district shall respond in accordance with the requirements of federal law. Within five school days, the district shall either agree to pay for the independent education evaluation or proceed to the Bureau of Special Education Appeals to show that its evaluation was comprehensive and appropriate. If the Bureau of Special Education Appeals finds that the school district’s evaluation was comprehensive and appropriate, then the school district shall not be obligated to pay for the independent education evaluation requested by the parent. 603 CMR 28.04(5)(d).
Here, Lanesborough is correct that if it wanted to preserve its right to dispute Parent’s request for independent evaluation, it had to initiate the process with the BSEA within five school days of the day in which it received Parent’s request, and it did so. However, the analysis of whether Parent was entitled to a publicly funded evaluation does not end there.
In contrast to Lanesborough’s position, Parent argued that the controlling regulation was 603 CMR 28.04(5)(c) which provides in pertinent part that
(c) Public Funding of independent education evaluations — When the parent requests public funding for an independent education evaluation, the district shall abide by the following provisions for a sliding fee scale:
1. If the student is eligible for free or reduced cost lunch or is in the custody of a state agency with an Educational Surrogate Parent appointed in accordance with federal law, then the school district shall provide, at full public expense, an independent education evaluation that is equivalent to the types of assessments done by the school district. No additional documentation of family financial status in required from the parent.
2. If the family financial status in not known, the district shall offer the parent information about the sliding fee scale and the opportunity to provide family income information to determine if the family may be eligible for public funding of all or part of the costs of an independent education evaluation. Provision of financial information by the family is completely voluntary on the part of the family. The lack of financial information provided by the family disqualify the family from such additional public funding of all or part of the costs of an independent education evaluation under 603 CMR 28.04(5)(c) but shall not limit the rights of parents to request public funding under 603 CMR 28.04(5)(d).
3. If the family agrees to provide financial information, such information shall include anticipated annual income of the family, including all sources of income and verifying documents. Financial information shall be reviewed by the district, shall be kept confidential during review by the district, shall not be copied or maintained in any form at the district except to note that information was provided and reviewed and met or did not meet sliding fee scale standards. Financial documents shall be promptly returned to the parent upon the district’s determination of financial income status.
4. The district shall consider family size and family income information in relation to Federal Poverty Guidelines and shall contribute public funds to the costs of the independent education evaluation according to the following standards:
(i) If the family income is equal to or less than 400% or the federal poverty guidelines, the district shall pay 100% of the costs of an independent education evaluation.
(ii) If the family income is between 400% and 500% of the federal poverty guidelines, the district shall pay 75% of the costs of an independent education evaluation …. 603 CMR 28.04(5)(c). [Emphasis supplied.]
The 2012 Federal Poverty Guidelines, provided by Lanesborough, take into account the number of family members in a household and provides an amount by which it must be multiplied as explained below. Here, contrary to Parent’s original argument, and as she later conceded, Student’s household includes four, not five members.
The proper calculation relevant to whether Parent totally or partially meets the Federal Poverty guideline for purposes of an independent evaluation is $ 23,050 x 400% which equals $ 92,200. As such, Lanesborough is correct that the total family as well as the adjusted family income for a family of four falls above the poverty level. However, as Parent correctly argues, under Massachusetts Special Education Regulations, specifically 603 CMR 28.04(5)(c), Parent’s family adjusted gross income of $ 99,883 nevertheless entitles her to 75% of the cost of an independent evaluation for Student.
Consistent with 603 CMR 28.04(5)(c) if the income for a family of four falls within the 400% to 500% of the federal poverty guidelines ($ 23,050 x 400 = $ 92,200, $ 23,050 x 500 = $ 115,250), Parent is entitled to 75% of the cost of the independent evaluation. Therefore, Parent is entitled to 75% of the costs of the independent educational evaluation in the areas assessed by the school district with which Parent disagrees.
Since Parent shared her income information with Lanesborough and since she meets the standard for 75% of the cost of the evaluation, any additional argument regarding whether the school’s evaluation was comprehensive and appropriate is irrelevant.
In its opposition, Lanesborough further argued that Parent had not indicated the scope of the independent evaluations, and stated that Parent had not indicated that the independent evaluation would be limited to the area of suspected disability. There is no dispute between the Parties as to the fact that consistent with Student’s IEP, the suspected area of need is a specific learning disability. As such, Parent is entitled to an independent evaluation that addresses Student’s specific learning disability relative to his reading and academic support needs (SE-A: SE-B; SE-C; SE-D; SE-E; See Parent’s submissions of May and May 16, 2012).
1. Parent’s Motion for Summary Judgment is GRANTED in PART.
2. Lanesborough shall pay 75% of the costs of the independent educational evaluation sought by Parent in the areas assessed by the school district with which Parent disagrees.
Rosa I. Figueroa, Hearing Officer
1 Parent further stated that there had been disagreement among the various Team members regarding the meaning of the test results.
2 Based on the results of these evaluations and a review of Student’s records, the Team entered a Finding of No Eligibility and proposed to terminate special education services.
3 The administrative record shows that Lanesborough requested the hearing in the instant case on March 30, 2012 rendering the school’s filing timely.