Boston P.S. BSEA #07-5365
COMMONWEALTH OF MASSACHUSETTS
BUREAU OF SPECIAL EDUCATION APPEALS
In Re: James[1] v. Boston Public Schools BSEA #07-5365
RULING ON BOSTON’S MOTION FOR PARTIAL SUMMARY JUDGMENT
AND STUDENT’S MOTION FOR PARTIAL SUMMARY DECISION
I. INTRODUCTION
In his Amended Hearing Request, Student identified the following issue for the first time: whether Boston “failed, prior to 2007, to identify and evaluate Student for special education services?”[2] By doing so, Student brought into question Boston Public Schools’ (Boston) compliance with the so-called child find requirements of the federal and state special education statutes.
This Ruling addresses Boston’s Motion for Partial Summary Judgment which seeks a determination that Boston did not violate its child find responsibilities under the Individuals with Disabilities Education Act (IDEA) and Massachusetts special education law and that, in any event, all child find claims prior to March 22, 2005 (i.e., two years prior to Student’s filing his Hearing Request on March 22, 2007) are barred by the statute of limitations. This Ruling also addresses Student’s Motion for Partial Summary Decision which seeks a determination that Boston violated its child find responsibilities starting in the fall of 2003 and continuing in the spring of 2006.
For reasons explained below, I find in favor of Boston on both motions. More specifically, I conclude that all child find claims prior to March 22, 2005 are barred by the statute of limitations. With respect to Student’s child find claims subsequent to March 22, 2005, I conclude that Boston is entitled to summary judgment with respect to its responsibilities
(1) to engage in publicity activities to advise the public regarding the availability of special education services and (2)to begin the evaluation process in a timely manner after determining Student’s possible need for special education services in the spring of 2006.
II. PROCEDURAL HISTORY AND EVIDENTIARY RECORD
On March 22, 2007, Student’s attorney filed a Hearing Request with the Bureau of Special Education Appeals (BSEA) alleging failure of Boston to provide appropriate special education services from October 2003 through the present.
The matter was then bifurcated. The first evidentiary hearing, which took place on June 12, 2007, addressed the following two issues: whether the statute of limitations precluded consideration of Parents’ claims prior to March 22, 2005 and whether Boston was exempt from any responsibility to have provided educational services to Student prior to October 30, 2006, when Boston first received Student’s medical certificate of appropriate immunizations. By a decision dated July 3, 2007 (July 3, 2007 Decision), I found in favor of Boston on both issues.
This matter was then scheduled for Hearing to address all remaining issues.
On July 19, 2007, Student requested permission to file with the BSEA an Amended Hearing Request, in part, for the purpose of raising explicitly the question of whether Boston had failed, prior to 2007, to identify and evaluate Student for special education services. Boston opposed this request. On July 25, 2007, I allowed Student to file the Amended Hearing Request and then re-calculated the due process timelines in accordance with the BSEA Hearing Rules.
With the parties’ agreement, I then re-scheduled this matter for Hearing to address all remaining issues on September 24 and 25, and October 1, 2007, and set a schedule for submission of any preliminary motions. On August 15, 2007, Boston filed its Motion for Partial Summary Judgment that is the subject of this Ruling. Student filed his objection on September 10, 2007. Simultaneously, Student filed a Motion for Partial Summary Decision that is also the subject of this Ruling. On September 18, 2007, Boston filed its objection to Student’s Motion for Partial Summary Decision.
For the purposes of this Ruling, I incorporate by reference my July 3, 2007 Decision in this dispute, including the factual findings contained therein. I also consider the evidentiary record for that Decision, includingdocuments submitted by the Student and marked as exhibits P-1 through P-15 and documents submitted by Boston and marked as exhibits S-1 through S-26.
In support of itsMotion for Partial Summary Judgment, Boston has submitted six additional documents, which are marked as attachments A through F. In support of his opposition and hisMotion for Partial Summary Decision, Student has submitted six additional documents, which are marked as attachments 1 through 6. I also consider these documents.
With respect to Boston’sMotion for Partial Summary Judgment, I accept as true Student’s version of the facts, where supported by record evidence, and draw from those facts all reasonable inferences in Student’s favor. With respect to Student’sMotion for Partial Summary Decision, I accept as true Boston’s version of the facts, where supported by record evidence, and draw from those facts all reasonable inferences in Boston’s favor.[3]
III. FACTUAL BACKGROUND
The facts described in this part of the Decision either have been determined in the July 3, 2007 Decision or are not in dispute.
Student, who is twenty-two years old (date of birth March 23, 1985), lives with his mother (Parent) in Boston. Student has been diagnosed with moderate mental retardation and profound developmental delay. July 3, 2007 Decision, page 2; exhibits P-10, S-16A.
Student was born in the Dominican Republic. At approximately 8 months of age, his father died. Student’s mother enrolled Student in the regular education schools in the Dominican Republic where Student also received speech therapy. He learned to speak at age five. Testimony of Parent (during previous hearing on June 12, 2007). July 3, 2007 Decision, page 2.
Student attended regular education schools in the Dominican Republic until he was nine years old. Parent was then told that her son could no longer attend regular education schools and could only attend a special education school for children with disabilities. Student was put on a waiting list for a special education school, but Parent was never notified that her son could attend such a school. As a result, Student did not any attend school in the Dominican Republic once he was removed from the regular education school at nine years old. July 3, 2007 Decision, pages 2-3.
Parent came to the United States in 2001. In September 2003, Mother brought her four children – Student and Student’s three siblings – to the United States to live with her. They then lived together in Boston. July 3, 2007 Decision, page 3.
In October 2003, Parent went to the West Zone Resource Office (located in Hyde Park) of the Boston Public Schools for the purpose of enrolling her four children in the public schools. Parent did not then and does not now understand English. Parent speaks and understands Spanish. Parent explained to the Boston employee (who spoke Spanish) that Student was eighteen years old, that he did not know how to read or write, and that he had mental retardation. Parent recalled that the Boston employee said that Student could not be enrolled in the Boston Public Schools. Parent further recalled that the Boston employee did not explain any reasons why Student could not be enrolled. Parent’s recollection is that nothing further was discussed between Parent and the Boston employee regarding Student. July 3, 2007 Decision, page 3; attachment 1, par. 2.
Parent stated in her affidavit that with respect to the fall of 2003, she “received no communication regarding whether Boston would identify and evaluate [Student] for special education services.” Attachment 1, par. 2.
From October 2003 until the spring of 2006, Parent believed that Student could not be enrolled in the Boston Public Schools, and she made no further attempt to enroll Student until the spring of 2006 when Parent was assisted by a Department of Mental Retardation employee (Ms. Elvyra Manning), as further explained in Parent’s affidavit as follows:
In the spring of 2006, Ms. Elvyra Manning... accompanied [Student] to an office of Boston in order to enroll him in Boston. Boston did not enroll [Student]. I received no communication regarding whether Boston would identify and evaluate [Student] for special education services.
In the spring of 2006, after Ms. Manning accompanied [Student] to the office in Boston, as described in paragraph #3 [the paragraph immediately above], she gave me a packet of materials given to her by Boston regarding Boston’s Special Education Summer Program. On behalf of [Student] I promptly signed the Permission Slip and returned it to Ms. Manning.
July 3, 2007 Decision, page 6; attachment 1, paras. 3, 4.
By letter dated March 1, 2006 from the Director of Boston’s Unified Student Services, a Boston Evaluation Team Facilitator was provided packets for students deemed eligible to attend Boston’s extended year summer program. Together with this letter is an undated letter to Parent indicating that Student has been recommended for Boston’s extended year summer program that would tentatively start on July 6, 2006. Exhibit P-6.
With the assistance of Ms. Manning, Parent obtained for Student the appropriate immunizations. The immunization documentation was then delivered to Boston on October 30, 2006, and on that date Student was enrolled in the Boston Public Schools. July 3, 2007 Decision, page 5.
By notice dated November 19, 2006, Boston sent Parent a request for permission to evaluate Student for purposes of determining his need for special education services. Parent signed and dated the request form on November 30, 2006. On the request form, Boston indicated its receipt on December 6, 2006. An IEP Team meeting was held on February 26, 2007, Student was determined to be eligible for special education, and an IEP was prepared for the period 2/07 to 2/08. Exhibits S-16A; P-7, P-10.
IV. STANDARD OF REVIEW
The Executive Office of Administration and Finance Adjudicatory Rules of Practice and Procedure, which are applicable to BSEA hearings, allow for summary decision when there is no genuine issue of fact relating to all or part of a claim or defense, and the moving party is entitled to prevail as a matter of law.[4]
Further guidance is found by turning to judicial rules regarding a motion for summary judgment, which rules set forth a standard substantially similar to the above-referenced adjudicatory rules. The Federal Rules of Civil Procedure, Rule 56(c), provide that summary judgment is appropriate when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to a material fact and that the moving party is entitled to a judgment as a matter of law.” A “genuine” issue is one that could be resolved in favor of either party, and a “material fact” is one that has the potential of affecting the outcome of the case.[5]
The moving party has the initial burden of production, which it can meet either by offering evidence to disprove an element of the plaintiff’s case or by demonstrating an “absence of evidence to support the nonmoving party’s case.”[6] Once the moving party has met its burden, the non-moving party must “go beyond the pleadings and by [its] own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial.”[7]
V. STATUTORY FRAMEWORK
The IDEA imposes the following child find responsibility on Massachusetts and its school districts:
All children with disabilities residing in the State, including children with disabilities who are homeless children or are wards of the State and children with disabilities attending private schools, regardless of the severity of their disabilities, and who are in need of special education and related services, are identified, located, and evaluated and a practical method is developed and implemented to determine which children with disabilities are currently receiving needed special education and related services.[8]
As the federal statutory language itself makes clear and as the courts have affirmed, child find is not limited to children already enrolled in the public school system. For example, students enrolled in private schools (rather than the public schools) are protected by child find.[9]
The regulations under the IDEA essentially mirror the child find statutory requirement, with the addition of the following language:
Other children in child find. Child find also must include--
(1) Children who are suspected of being a child with a disability under §300.8 and in need of special education, even though they are advancing from grade to grade; and
(2) Highly mobile children, including migrant children.[10]
The Massachusetts special education statute includes a requirement that each school district identify the school-age children with disabilities who reside in the school district’s jurisdiction, and diagnose and evaluate the needs of such children.[11] The Massachusetts Department of Education (MDOE) special education regulations do not specifically address child find considerations.
Court decisions and commentary by the United States Department of Education relevant to these statutory and regulatory standards have clarified that there are, essentially, two distinct requirements under child find, which are discussed separately below.
First, under child find, a school district must engage in publicity activities for purpose of informing the public of the availability of special education and related services. In its discussion of IDEA regulations promulgated in 2006, the United States Department of Education has referenced the following publicity that a school district may be expected to undertake to comply with child find: “such activities as widely distributing informational brochures, providing regular public service announcements, staffing exhibits at health fairs and other community activities, and creating direct liaisons with private schools.”[12]
A state’s policies and procedures may be considered in determining a school district’s obligations to inform the public pursuant to child find.[13] MDOE’ “Special Education Program Plan Statement” (in effect January 1, 2001 and updated August 2006) simply states the expectation that the school district “uses multiple methods of informing the public of the availability of special education services and has general information available to parents and interested parties upon request” and complies with applicable legal requirements regarding evaluation.[14]
Courts have generally approved a school district’s publicity activities without further defining any specific, minimum requirements or other standards.[15]
Second, under child find, a school district may have a responsibility to evaluate a particular student for purposes of determining his/her special education eligibility.[16] There appears to be no obligation upon a school district to follow up with individual parents when a parent has not responded to the school district’s publicity campaign and the school district has insufficient reason to suspect that the student has a disability requiring special education services.[17]
However, once a parent requests (or indicates a need for) special education services, even if the parent’s request or indication of need is inartfully stated, or once the school district has sufficient information regarding a student’s need for special education services, even if the student is only “suspected” of having a disability that may require services, the school district may then have an evaluation responsibility under child find – that is, child find may require the school district to follow through with the student and parent for the purpose of meeting the school district’s general responsibilities to identify and evaluate all potentially-eligible students who reside within that school district’s jurisdiction.[18]
VI. DISCUSSION
A. Introduction
Neither Student’s eligibility status (until his twenty-second birthday) nor his entitlement to a free appropriate public education (FAPE) pursuant to the Individuals with Disabilities Education Act (IDEA)[19] and the state special education statute[20] is in dispute.
B. Statute of limitations
In my earlier Decision in the instant dispute (July 3, 2007 Decision), I concluded (at page 15) that Student’s claims prior to March 22, 2005 are barred by the statute of limitations.
Subsequent to the July 3, 2007 Decision, Student filed an Amended Hearing Request explicitly raising, for the first time, his child find claims, including child find claims from October 2003. Student takes the position that notwithstanding the July 3, 2007 Decision, Student’s child find claims from October 2003 may be considered. Boston disagrees. I now consider this question.[21]
The IDEA statute of limitations reads as follows:
(C) Timeline for requesting hearing. A parent or agency shall request an impartial due process hearing within 2 years of the date the parent or agency knew or should have known about the alleged action that forms the basis of the complaint, or, if the State has an explicit time limitation for requesting such a hearing under this part, in such time as the State law allows.
(D) Exceptions to the timeline. The timeline described in subparagraph (C) shall not apply to a parent if the parent was prevented from requesting the hearing due to--
(i) specific misrepresentations by the local educational agency that it had resolved the problem forming the basis of the complaint; or
(ii) the local educational agency's withholding of information from the parent that was required under this part to be provided to the parent.[22]
For the reasons explained in the July 3, 2007 Decision, this two-year statute of limitations is applicable to the instant dispute. In order to avoid the general two-year limitation, Student seeks to come within the subsection (D)(ii) exemption quoted above.[23]
As an initial step in determining the applicability of subsection (D)(ii), I must determine whether Boston withheld “information... that was required under this part to be provided to the parent” (emphasis supplied). The statutory phrase “this part” refers to part B of the federal special education statute. Part B is entitled “Assistance for Education of all Children With Disabilities” and is found at 20 USC § 1411 through § 1419. Required information under “this part” includes two notices that arguably are relevant to the instant dispute – I will discuss each notice separately below.
First, the version of the IDEA that was in effect in 2003 required that a school district provide a prior written notice to parents, explaining the actions proposed or refused by the school district. The IDEA required this written notice to be provided by the school district to a parent whenever the school district did either of the following:
(A) proposes to initiate or change; or
(B) refuses to initiate or change; the identification, evaluation, or educational placement of the child, in accordance with subsection (c), or the provision of a free appropriate public education to the child....[24]
Student takes the position that Parent’s actions in 2003 should be considered to be a request or referral for a special education evaluation, and therefore the above-quoted federal statutory language applies.[25] More specifically, Student takes the position that in 2003, Boston “refuse[d] to initiate... the... evaluation” of Student after Parent’s referral, and therefore Boston was required to provide Parent with a prior written notice under the IDEA. It is not disputed that Boston did not provide a prior written notice to Parent in 2003.
In October 2003 when Parent visited the Boston office for purposes of enrolling her four children in school, Student had not been receiving special education services nor did he have an IEP. It was then (and has remained) Boston’s practice that for such a student (who has not been receiving special education services in a previous school district or who comes to Boston without an IEP), the student is first registered as a regular education student and assigned a school in Boston. Then, a parent may contact the Evaluation Team Facilitator for the particular school for the purpose of seeking educational evaluations and applying for special education services. July 3, 2007 Decision, page 4.
The facts in the instant dispute, as alleged by Student and as determined in the July 3, 2007 Decision, regarding what occurred in October 2003 are consistent with this practice. And Student does not dispute that Boston followed this practice in the instant dispute.
In accordance with this practice, the question of whether Student should or should not be evaluated to determine the need for special education services would not have arisen until Student was first registered as a regular education student. This registration never occurred in 2003. Therefore, it cannot be said that Boston refused to initiate a special education evaluation at that time. For these reasons, I find that the prior written notice requirement (which is triggered by a school district’s refusal to evaluate for purposes of special education) does not apply to the instant dispute with respect to 2003.
Second, the version of the IDEA in effect in 2003 required that a copy of a notice of procedural safeguards be provided to a parent at the following times:
IN GENERAL‑ A copy of the procedural safeguards available to the parents of a child with a disability shall be given to the parents, at a minimum ‑‑
(A) upon initial referral for evaluation;
(B) upon each notification of an individualized education program meeting and upon reevaluation of the child; and
(C) upon registration of a complaint under subsection (b)(6).[26]
The only arguably relevant part of this quoted language is that the safeguards notice must be provided to a parent “upon initial referral for evaluation.”
Parent was entitled to make a referral for an evaluation.[27] However, I do not believe that such a referral was made in fact, nor does it seem reasonable to require that Boston consider Parent’s actions to be the equivalent of a referral. Construing the facts in a light most favorable to Student, Parent sought enrollment of Student when she visited the Boston office in October 2003, and Boston denied the enrollment. For reasons discussed above, Boston’s practice was first to determine Student’s eligibility for education in general prior to considering Student’s need for special education services. It simply does not accord with these facts to conclude that Parent was actually or implicitly referring Student for a special education evaluation at the time that she visited the Boston office in October 2003. Accordingly, I find that this statutory notice requirement does not apply to the instant dispute with respect to 2003.
Student has not taken the position that Boston failed to provide Parent with any other required information, and I am not aware of any information that Boston arguably should have provided Parent at that time.
I find that Boston did not withhold information that was required (under part B of the IDEA) to be provided to Parent. Accordingly, I further find that there is no applicable exemption to the two-year statute of limitations under the IDEA.
For these reasons, all child find claims prior to March 22, 2005 are barred by the statute of limitations.
I now turn to the merits of Student’s child find claims on or after March 22, 2005 and consider whether either party is entitled to summary judgment.
C. Child find
As discussed in part V of this Decision, Boston has a responsibility, pursuant to child find, to engage in certain publicity activities for purpose of informing the public of the availability of special education and related services.
In response to Student’s interrogatory no. 13, Boston provided the following information relevant to its child find policies and procedures that were in effect in 2003 and 2006:
Boston publishes “Introducing the Boston Public Schools” in seven (7) languages, including Spanish. This bulletin is also posted in an online version. This bulletin is geared toward parents who do NOT have children already enrolled in Boston and instructs them on the policies and procedures of the district including enrollment, documentation necessary, immunization, school choice and other matters. On page 5 it addresses Special Education and lets parents know if they suspect their child has a disability, they can bring them to Boston for an evaluation. This bulletin is delivered to community centers, health centers, schools, City Hall, libraries and Parent Resource Centers.... In addition, Boston distributes flyers annually to health centers, community centers and libraries regarding special education screening for children age 3 and older, Boston also has a Special Needs Parent Advisory Council.
Attachment F.
Student disputes neither that these publicity activities occurred nor that these publicity activities are sufficient. Accordingly, I find that Boston is entitled to summary judgment with respect to its child find responsibility to engage in publicity activities for purpose of informing the public of the availability of special education and related services.
As discussed toward the end of part V of this Decision, Boston may have an additional responsibility, pursuant to child find, to evaluate a particular student for purposes of determining special education eligibility. Student claims that Boston violated this responsibility in 2006 by failing to respond quickly enough to Parent’s requests. I now consider whether either party is entitled to summary judgment regarding this aspect of the dispute.
When the alleged facts are viewed in the light most favorable to Student, it appears that Boston was aware of Student as a potential special needs student no later than March 1, 2006. Relying in particular on the Robertson decision, Student argues that when Boston became aware at this time that Student would likely require special education services, it should have commenced the evaluation process.[28] Boston did not commence the evaluation process until it sent Parent a request form for permission to evaluate Student, which request form was dated November 19, 2006. Student argues that this delay in initiating the evaluation process (from March 1, 2006 to November 19, 2006) was a violation of child find.[29]
As discussed more fully in the July 3, 2007 Decision, Massachusetts law (MGL c. 76, s. 15) precluded Student from being admitted to school until Boston received the requisite immunization documentation. In that earlier Decision, I found that Parent presumably knew (as a result of the registration of her other children several years earlier) that proper immunization documentation would be required prior to Student’s enrollment in the Boston Public Schools. I further found that Boston did not have any responsibility to enroll Student and begin any educational services until it received the requisite immunization documentation on October 30, 2006. It is not disputed that Boston enrolled Student on the date that it received the immunization documentation – that is, October 30, 2006. July 3, 2007 Decision, pages 14-15.
I am aware of no judicial decision or statutory/regulatory authority in support of Parent’s position that Boston is responsible for beginning the special education evaluation process prior to Parent’s completing the relevant paperwork (including, immunization documentation) necessary for Student to receive any educational services from Boston.[30] I further conclude that Boston’s practice was appropriate in this case – that is, where Student had not been receiving any special education or regular education services, Boston was entitled to place the burden on Student (and Parent) to satisfy the appropriate conditions for receiving any educational services from Boston prior to Boston’s having responsibility to begin the process of considering Student’s need for special education services.
My authority to address a child find violation, as a claim under the IDEA, is limited to those alleged violations which impeded Student’s right to FAPE or which caused a deprivation of educational benefits.[31] With respect to a loss of FAPE or other deprivation of educational benefit as a result of Student’s child find claims, I can find no relevance in Boston’s actions (or inactions) prior to October 30, 2006, which is the date that Parent provided the necessary immunization documentation to Boston. Accordingly, I consider only the length of time from October 30, 2006 to November 19, 2006 (the date of Boston’s request for permission to evaluate Student), which is an insufficient length of time to warrant relief.[32]
For these reasons, I find that Boston has committed no child find violation for which relief may be granted. Accordingly, Boston is entitled to summary judgment on this issue.
ORDER
Boston’s Motion for Partial Summary Judgment is ALLOWED. Student’s Motion for Partial Summary Decision is DENIED.
By the Hearing Officer,
William Crane
Dated: September 21, 2007
Footnotes
[1] “James” is a pseudonym chosen by the Hearing Officer to protect the privacy of the Student in publicly available documents.
[2] Amended Hearing Request, par. VIA1.
[3] See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
[4] 801 CMR 1.01(7)(h). These rules govern BSEA proceedings pursuant to 603 CMR 28.08(5)(b).
[5] Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-50 (1986).
[6] Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).
[7] Id. at 324 (internal quotation marks omitted). See also Nat'l Amusements, Inc. v. Town of Dedham, 43 F.3d 731, 735 (1st Cir.1995).
[8] 20 USC § 1412(a)(3). The child find requirements prior to July 1, 2005 (the effective date of IDEA 2004) did not include the language “children with disabilities who are homeless children or are wards of the State.” Otherwise, the statutory language did not change for purposes of the instant dispute.
[9] Id.;Doe v. Metropolitan Nashville Public Schools , 9 Fed.Appx. 453 (6th Cir. 2001);Robertson County School System v. King, 99 F.3d 1139 (6th Cir. 1996); Nesbit v. District of Columbia, CA No. 01-2429, 2003 U.S. Dist. LEXIS 26306 (D.D.C. 2003).
[10] 34 CFR § 300.111(a)(1)(i) and (c) (effective October 13, 2006). Prior to October 13, 2006, the child find regulations appeared at 34 CFR § 300.125. Comparing these two regulations, I find no substantive differences that are relevant to the instant dispute.
[11] MGL c. 71B, s. 3.
[12] Discussion of public comments regarding regulations (34 CFR § 300.131), published in the Federal Register, vol. 71, no. 156, page 46593, 3rd column (August 14, 2006).
[13] See, e.g., Doe v. Metropolitan Nashville Public Schools , 9 Fed.Appx. 453 (6th Cir. 2001) (court considers state guidelines regarding child find); Robertson County School System v. King, 99 F.3d 1139 (6th Cir. 1996) (court considers the state policies and procedures regarding child find).
[14] This Statement is found on the MDOE website at: http://www.doe.mass.edu/sped/programplan/pp_statement.doc
[15] E.g., Doe v. Metropolitan Nashville Public Schools , 9 Fed.Appx. 453 (6th Cir. 2001) (court approved a publicity campaign that included a presentation at Student’s former school and distribution of information to child specialists);Alex K. v. Wissahickon Sch. Dist., 2004 WL 286871 (E.D.Pa. Feb.12, 2004) (court found satisfactory the publication of child find notices in local newspapers, distribution of a pamphlet in school district buildings and non-public schools, and posting of information on its internet web site describing the availability of special education services and how to request those services); Mr. T. v. Lewiston School Committee, 2000 WL 1052016 (D.Me. 2000) (court found no liability under child find where school district had advertised the fact that special education services were available, employed a staff member to contact all private schools, and provided training about the process of referring students for special education services).
[16] There are also regulatory requirements (within the federal special education regulations) that separately address evaluation, and these regulations are not discussed here as part of child find. 34 C.F.R. §§ 300.301 through 300.305. The United States Department of Education has cautioned that these evaluation requirements “should not be confused” with child find responsibilities. See US DOE’s discussion of public comments regarding regulations (34 CFR § 300.131), published in the Federal Register, vol. 71, no. 156, page 46593, 3rd column (August 14, 2006).
[17] E.g., Doe v. Metropolitan Nashville Public Schools , 9 Fed.Appx. 453 (6th Cir. 2001) (“nothing in the IDEA, its implementing regulations, or the State guidelines... require[s] Defendant to provide specific parents within its jurisdiction with specific procedural and substantive information concerning specific disabilities or needs, prior to any contact between that family and the school system”);Alex K. v. Wissahickon Sch. Dist., 2004 WL 286871 (E.D.Pa. 2004) (conversations between parents and school officials about child's learning problems did not implicate child find duty); Reid v. District of Columbia, 310 F.Supp.2d 137, 147 (D.D.C. 2004)(Parent’s request for help did not trigger child find responsibility),rev. on other grounds, 401 F.3d 516 (DC Cir. 2005);Mr. T. v. Lewiston School Committee, 2000 WL 1052016 (D.Me. 2000) (school district not responsible to identify or seek to evaluate student under child find where it had “no reason to believe that the student was a potential candidate for special education referral”).
[18] E.g., Board of Educ. of Fayette County, Ky. v. L.M. , 478 F.3d 307 (6th cir. 2007) (“Even children who are only suspected of having a disability, although they are progressing from grade to grade, are protected by [child find] requirement.”); Robertson County School System v. King, 99 F.3d 1139 (6th Cir. 1996) (request for assessment is implied when parent informs school district that student may have special needs, thereby requiring school district to identify and evaluate student);W.B. v. Matula, 67 F.3d 484, 501 (3d Cir.1995) (child find requires school district to identify and evaluate children “who are suspected of having a qualifying disability” within a reasonable time after they are “on notice of behavior that is likely to indicate a disability”);C.G. v. Five Town Community School Dist., 2007 WL 494994 (D.Me. 2007) (child find duty triggered when school district had reason to suspect that student has a disability and that special education services may be needed to address that disability) (see also cases cited therein), 2007 WL 1051605 (2007) (affirming recommendations of magistrate judge);Scott v. District of Columbia, 2006 WL 1102839 (D.D.C. 2006) (need for an evaluation to determine special education eligibility was evident throughout the school year, with the result that school district should have sought to evaluate student under child find);Nesbit v. District of Columbia, CA No. 01-2429, 2003 U.S. Dist. LEXIS 26306 (D.D.C. 2003) (school district was “responsible for [Student’s] special education needs as soon as [Parent] inquired about evaluation”).
[19] 20 USC 1400 et seq.
[20] MGL c. 71B.
[21] Boston is correct that this issue was raised in the previous Hearing in this matter. There, Student briefly argued that child find principles should result in Student’s not being limited to a two-year statute of limitation, and the July 3, 2007 Decision (at pages 13-14) concluded to the contrary. Boston now argues that Student should not be given an opportunity to re-litigate this issue. I prefer to take this opportunity to consider this issue more fully at this time for the following reasons. Child find was not explicitly raised as a claim until Student’s Amended Hearing Request was filed, which was subsequent to the July 3, 2007 Decision. Student’s Motion for Summary Decision and his opposition to Boston’s Motion for Partial Summary Judgment set forth substantive child find arguments for the first time. My previous analysis in the July 3, 2007 Decision considered this issue only in a perfunctory manner.
Cf.L.A. v. Granby Bd. of Educ., 2007 WL 1475570 (2nd Cir. 2007) ("dismissal for reasons not going to the merits is viewed with disfavor in the federal courts"); KPS & Assoc., Inc. v. Designs by FMC, Inc., 318 F.3d 1, 13 (1st Cir. 2003) (noting goal of resolving cases on the merits).
[22] 20 USCS § 1415(f)(3). This statute of limitations was included, for the first time, within the IDEA as part of the 2004 amendments that became effective on July 1, 2005.
[23] Student also seeks to come within the exemption found within BSEA Hearing Rule IC, which provides as follows:
A parent or agency shall request an impartial due process hearing within 2 years of the date the parent or agency knew or should have known about the alleged action that forms the basis of the complaint. This timeline does not apply if a parent was prevented from requesting a hearing due to specific misrepresentations by the school or withholding of necessary information by the school. [Emphasis supplied.]
This emphasized language from the BSEA Hearing Rule does not precisely mirror the statutory language under IDEA 2004. The phrase “necessary information” could possibly be interpreted as different than and possibly broader than the comparable language within IDEA 2004 statute of limitations, quoted above. However, I understand that the purpose of the BSEA Hearing Rule language is only to reflect within the BSEA Rules the federal statute of limitations without providing any additional or different rights. Therefore, I interpret BESA Hearing Rule IC as providing Student with the identical rights that are discussed above with respect to IDEA 2004.
[24] 20 USC § 1415(b)(3)(IDEA). The changes to this statute as a result of IDEA 2004 are not relevant to the instant dispute.
[25] Student actually focuses on related regulatory language, rather than the statutory language quoted above. For purposes of the instant dispute, however, there is no substantive difference between the statutory and regulatory provisions.
[26] 20 USC § 1415(d)(1).
[27] The MDOE regulations provide:“A student may be referred for an evaluation by a parent or any person in a caregiving or professional position concerned with the student's development.” 603 CMR 28.04 (1).
[28] Robertson County School System v. King, 99 F.3d 1139 (6th Cir. 1996) (request for assessment is implied when parent informs school district that student may have special needs, thereby requiring school district to identify and evaluate student).
[29] Student also argues that Boston failed to provide Parent with the requisite notice explaining its decision not to evaluate Student on or about March 1, 2006. See 20 USC § 1415(b)(3)(B); 34 CFR 300.503 (requiring prior written notice when a school district refuses to initiate an evaluation). I am not persuaded, however, that this claim is relevant to the child find dispute which is the subject of the parties’ motions.
[30] As noted earlier in this Decision (footnote 9 and accompanying text), judicial decisions and the IDEA make clear that child find responsibilities may begin prior to a student’s being enrolled in the public schools – for example, when a school district becomes aware of a student with a disability who is enrolled in a private school rather than the public schools. However, I am aware of no child find decision involving a student who had not yet met the minimum conditions for receiving any educational services from the public school district, nor do the federal or state special education laws and regulations regarding child find address this situation.
[31] 20 USC § 1415 (f)(3)(E).
[32] Student’s child find claims do not raise any concerns regarding what Boston did or did not do after the November 19, 2006 request for evaluation.