COMMONWEALTH OF MASSACHUSETTS SPECIAL EDUCATION APPEALS In Re: Lexington Public Schools v.

Student DECISION This decision is issued pursuant to the ndividuals !ith "isabilities #ducation $ct %20 &S' 1400 et seq.() Section *04 o+ the ,ehabilitation $ct o+ 1-./ %2- &S' .-4() the state special education la! %01L ch. .12() the state $d3inistrative Procedure $ct %01L ch. /0$() and the regulations pro3ulgated under these statutes. 4n 4ctober 20) 200-) Lexington Public Schools %Lexington( +iled a ,e5uest +or 6earing in the above-re+erenced 3atter. Lexington later re5uested that the 3atter be decided on sub3ission o+ docu3ents onl7. 4n 8ove3ber 12) 200-) Parent co33unicated her assent to have the case decided on sub3ission o+ docu3ents onl7. The Parties9 re5uest is granted pursuant to ,ule : o+ the Hearing Rules for Special Education Appeals.1 ;ollo!ing receipt o+ Parent9s argu3ent and docu3ents) Lexington re5uested an opportunit7 to respond) !hich re5uest !as granted on 8ove3ber 12) 200-) and Lexington !as given until 8ove3ber 2/) 200-) to sub3it its response. This decision on docu3ents and argu3ents o++ered b7 the Parties) is being issued b7 6earing 4++icer ,osa . ;igueroa. n rendering this decision rel7 on docu3ents sub3itted b7 Lexington on 8ove3ber 16) 200-) and 3ar<ed as exhibits S#-1 through S#-.= and docu3ents sub3itted b7 Parent and 3ar<ed as exhibits P#-1 through P#-/6. The record closed on 8ove3ber 2/) 200-. ISSUES: 1. >hether Parent is entitled to independent $daptive Ph7sical #ducation and ;unctional Living S<ills evaluations? 2. >hether Parent is entitled to rei3burse3ent +or the 8europs7chological #valuation conducted b7 "r. Lovec<7? /. >hether Lexington is re5uired to pa7 a3ounts greater than the rates established +or Speech and Language) $ssistive Technolog7) @ocationalA Transitional) and 4ccupational Therap7 independent evaluations? BSEA # 10-2604

B ,ule : C Decision Without a Hearing A party may request a e!"s"#n $"t%#ut a %ear"n& $ll parties 3ust agree to a decision based solel7 on !ritten 3aterial. The decision !ill have the sa3e +orce and e++ect as an7 other 2S#$ decision.D

POSITION OF THE PARTIES Le'"n&t#n(s P#s"t"#n: Lexington sates that pursuant to a ,uling2 earlier this 7ear on its 0otion +or Su33ar7 Eudg3ent regarding Lexington9s right to conduct its proposed three 7ear re-evaluation) Lexington conducted evaluations in several areas b7 5uali+ied individuals. Lexington asserts that it is not responsible to +und the independent $dapted Ph7sical #ducation sought b7 Parent) because its evaluation !as co3prehensive and appropriate= the ;unctional Living S<ills evaluation because this area !as covered b7 other evaluations it per+or3ed= and the 8europs7chological ndependent #valuation because this issue !as alread7 adFudicated b7 the previous 6earing 4++icer in the instant case. t also disputes that it has to +und independent Speech and Language) $ssistive Technolog7) @ocationalAtransitional) and 4ccupational Therap7 evaluations at a rate greater than the one established b7 the 0assachusetts "ivision o+ 6ealth 'are ;inance and Polic7 ,egulations) since there are no exceptional circu3stances !arranting deviation +ro3 the established rates. Parent(s P#s"t"#n: Parent asserts that Student presents ver7 co3plex issues) and challenges Lexington9s evaluations on the basis that the7 are not co3prehensive enough. She also asserts that Lexington9s evaluations +ail to provide an in-depth picture o+ Student9s strength and !ea<nesses. Parent also states that Student9s slo! processing speed prevent hi3 +ro3 co3pleting the evaluations !ithin a prescribed ti3e +ra3e. 0oreover) she believes that the evaluators !ho accept rate setting rates do not possess the necessar7 training and experience to understand Student9s uni5ue needs. $s such) she see<s co3prehensive independent evaluations in 3ultiple areas that exceed the ti3e and pre-deter3ined rates allotted under the 0assachusetts "ivision o+ 6ealth 'are ;inance and Polic7 ,egulations. Parent also see<s rei3burse3ent +or "r. Lovec<79s neurops7chological evaluation o+ Eanuar7 and ;ebruar7 200-. Lastl7) Parent argues that a previous special education director in Lexington had agreed to pa7 +or independent evaluations that exceeded pre-deter3ined rates) and there+ore) she should be allo!ed the sa3e lee!a7 as be+ore.

This ,uling !as issued b7 the previous 6earing 4++icer 'atherine Putne7-Gacesh7n on 0a7 2-) 200-.

FINDIN)S OF FACT* 1. Student is a seventeen 7ear-old resident o+ Lexington) 0assachusetts %S#-/(. Student attended +i+th grade through the !inter o+ his ninth grade in Lexington) a+ter !hich Parent ho3eschooled hi3 +or the re3ainder o+ the 2006-200. school 7ear %S#-2(. "uring tenth grade) Student attended the 0inute3an @ocational 6igh School +or electronics and energ7. $+ter +ailing all but one course) and being told that he !ould have to repeat 10th grade) Parent ho3eschooled hi3 again +or the eleventh grade % d.(. Student !as o++iciall7 !ithdra!n +ro3 0inute3an @ocational 6igh School in 8ove3ber 200H %S#-*(. 2. Student) !ho !as delivered !ith vacuu3 suction) has been diagnosed !ithC 0o3entar7 'ardiac $rrest at birth) prenatal preecla3psia) and colic= $sperger9s "isorder= $"6"= 3ild 'erebral Pals7 causing lo!er extre3it7 !ea<ness) !ea< hand 3uscles and pain !ith extended !riting) Spastic "iplegia= 0itochondrial "isease4 %!hich i3pacts his 3etabolis3) energ7 level and 3an7 bodil7 s7ste3s(= 1eneraliIed $nxiet7 "isorder= "7sth73ia= "epression= seiIures= Learning "isabilit7 in >ritten #xpression= Learning "isabilit7 in ,eading= 4bsessive 'o3pulsive ;eatures= Tourette9s S7ndro3e= several bouts o+ Pneu3onia and repeated ear in+ections %P#-2.= S#-2(. Student also su++ered a +racture o+ the L/ vertebra) and su++ers +ro3 3ild sleep apnea %S#-4(. 6is +ine 3otor issues 3a<e it di++icult +or hi3 to per+or3 certain tas<s) such as changing his clothes) in a ti3el7 +ashion %P#-2/(.
/. $t Parent9s re5uest) Student under!ent extensive evaluation b7 "r. "eidre Lovec<7 in Eanuar7 200-* %P#-/1= S#-2(. "r. Lovec<7 ad3inistered the >$ S@) >oodcoc<-Eohnson- ) T4>L-4) Peabod7 Picture @ocabular7) >,$T) 2ender) 'o3prehensive $ssess3ent o+ Spo<en Language) Test o+ Prag3atic Language-2) ,e7-4sterrieth 'o3plex ;igure "ra!ing) 6ooper @isual 4rganiIation Test) "evelop3ental Test o+ @isual Perception) 2enton ;acial ,ecognition Test) 3ost o+ the 8#PSG- ) 'o3prehensive Trail-0a<ing Test) "2 Test o+ $ttention) To!er o+ London) Stroop 'olor->ord) Test o+ ,eading 'o3prehension-4) and chec<lists including the 'onners Parent ;or3) 2ro!n) Eullian $sperger9s 'hild 2ehavior 'hec<list) Sel+-#stee3 ndex) and ,oberts%P#-/1(. $s o+ Septe3ber -) 200-) Parent stated that she had not 7et received the report o+ "r. Lovec<79s evaluation %S#-2(.
/

Parent provided her version o+ the +acts !hich +or the 3ost part !ere irrelevant to the issue be+ore 3e and there+ore) not included as part o+ the +acts delineated herein. $lso) P#-1 through P#-12) P#-16) P#-22) P#/0) P#-/2) P#-//) P#-/4) P#-/*) P#-/6) and P#-/. !ere dee3ed stale andAor irrelevant to the issue be+ore 3e) and there !as no P#-1/. 4 This disorder causes Student to experience Bchest pain) shortness o+ breath) 3uscle !ea<ness and +atigue) autono3ic d7s+unction) persistent l73phadenopath7) s<in lesions) and gastroesophlageal re+luxD %P#-2.= S#4(. Student9s congenital 3itochondrial disease is progressive and according to 2arbara Eean 6etherington) ,PT) could be causing Student9s d7sautono3ia) persistent l73phadenopath7 and chronic pain %S#-6(. * "r. Lovec<7 evaluated Student on Eanuar7 14) 16) 21) 2/) /0 and ;ebruar7 .) 200- %P#-/1(.

4. "r. Lovec<79s report) !hich is not dated) states that Student !as cooperative and 3otivated during the evaluation but that even !hen he sho!ed +atigue it !as di++icult +or the evaluator to convince Student to ta<e brea<s. She) ho!ever) +ound that !hen he too< brea<s) he per+or3ed better %P#-/1(. "uring the testing) he re5uired re-direction to re-+ocus his attention) instructions had to be repeated as a result o+ his interrupting or tal<ing !hile the evaluator !as presenting 3aterial or directions) he displa7ed di++icult7 !ith planning and organiIation and !or<ed at an exceptionall7 slo! pace partl7 due to his slo! processing speed and his Bpiece-b7-piece approach to tas<sD %P#-/1(. She 3ade t!ent7 three reco33endations to address Student9s di++iculties !ithin a high school setting) including a +lexible) high level curriculu3 !ith +re5uent brea<s) participation in extracurricular activities) 3uch one-to-one instruction) as !ell as an assigned aide) and use o+ assistive technolog7. She also reco33ended access to specialiIed Ph7sical #ducation and a health course speciall7 designed +or adolescents !ith $sperger S7ndro3e. 'ontinued individual ps7chotherap7) in addition to participation in co33unit7 teen group activities to develop social s<ills) !as also reco33ended %P#-/1(. *. 4n ;ebruar7 1) 200-) Parent signed a consent +or3 allo!ing Lexington to proceed !ith a ph7sical therap7 evaluation o+ Student. 6. Lexington conducted a ph7sical therap7 evaluation on $pril 2H) 200- %S#-6(. The evaluation !as per+or3ed b7 2arbara Eean 6etherington) ,PT. Parent !as present during the evaluation. $ccording to 0s. 6etherington) Student !as cooperative. 8o +or3al testing to assess gross 3otor s<ills !as per+or3ed. nstead) Student9s strength !as evaluated b7 a 3anual 3uscle test through !hich he scored a +ive %* indicative o+ goodAnor3al strength(= balance !as assessed through a variet7 o+ activities and +ound to be good= !rist and +inger 3otion !as +ound to be !ithin nor3al li3its= and endurance !as assessed on the basis o+ his abilit7 to co3plete strengthening exercises= but he !as unable to co3plete 3ore than +ive %*( sit ups or push ups be+ore developing tre3ors in his extre3ities) beginning to s!eat and having to rest +or several 3inutes. ,ange o+ 3otion !as also 3easured. 0s. 6etherington +ound that Student presented !ith Bslight h7per3obilit7 at his shoulders) elbo!s and <neesD but he presented good strength o+ his trun< and extre3ities) as !ell as good balance. 6e de3onstrated decreased endurance !ith gross 3otor tas<s and reported disli<ing ph7sical activit7 because he beco3es easil7 +atigued. 6e !as +ound to be capable o+ 3onitoring his +luid inta<e to avoid deh7dration and according to the evaluator) understood his d7sutono3ia. Student ho!ever) did not consistentl7 recogniIe !hen he !as beco3ing +atigued and !or<ed until he could not go on +urther %S#-6(. .. 4n 0a7 1*) 200-) Parent consented to Lexington conducting a Special #ducation assess3ent) Speech and Language assess3ent) 4ccupational Therap7

assess3ent) Ph7sical Therap7 assess3ent) @ocational assess3ent and $ssistive Technolog7 assess3ent %P#-14(. H. Pursuant to a ,uling issued on 0a7 2-) 200-) addressing Lexington9s 0otion +or Su33ar7 Eudg3ent) Lexington !as allo!ed to proceed !ith #ducationalA Ps7chological) Speech and Language) 4ccupational) $ssistive Technolog7) Ph7sical Therap7) and @ocational evaluations o+ Student %S#-1(. Parent also re5uested that Lexington +und the private 8europs7chological evaluation co3pleted b7 "r. Lovec<7 during the !inter o+ 200- % d.(. -. $t Lexington9s re5uest) Eanet @odvar<a) Ph.".) conducted a Ps7chologicalA educational evaluation o+ Student on Eune 2/ and Septe3ber -) 200- %S#-2(. "ue to the extensive evaluation per+or3ed b7 "r. Lovec<7 earlier in 200-) "r. @odvar<a +ound it necessar7 to use other 3easures not used earlier. She ad3inistered the >echsler ntelligence Test-#dition @ %> S'- @(= >echsler ndividual $chieve3ent Test-#dition %> $T- (= "elis-Japlan #xecutive ;unction S7ste3C Trail 0a<ing) "esign ;luenc7) @erbal ;luenc7) Sorting Test) T!ent7 Kuestions Test) >ord 'ontext Test= 'onners-/ Parent ,ating Scales= Tas<s o+ #3otional "evelop3ent %T#"(= $chenbach Gouth Sel+-,eport +or ages 11-1H= 2ehavior $ssess3ent S7ste3 +or 'hildren) #d.-2) $dolescent and Parent ,ating Scales) and intervie!s. The +ocus o+ "r. @odvar<a9s evaluation !as to provide updated in+or3ation regarding Student9s Babilit7 level) acade3ic levels) executive +unctioning and e3otional +unctioningD %S#-2(. Previous reports revie!ed b7 "r. @odvar<a noted superior to ver7 superior verbal abilit7 and non-verbal reasoning !ith slo! processing speed) attentional di++iculties) executive +unctioning di++iculties) +ine 3otor !ea<nesses) social prag3atic !ea<nesses) !ea<nesses in spelling) phonological processing di++iculties) poor reading +luenc7 and poor 3ath. "r. @odvar<as reported that Student engaged in the testing and put +orth good e++ort %S#-2(. Test results !ere consistent !ith previous testing. 10. "ebbie L. 0c'anne) licensed Speech and Language Pathologist) 0.S.) ''SLP) conducted the Speech and Language evaluation on Septe3ber 1) 200- %S#/(. She ad3inistered the #xpressive 4ne->ord Picture @ocabular7 Test &pper #xtension %1ardner() Peabod7 Picture @ocabular7 Test-,evised %;or3- () Test o+ Language 'o3petence-#xpanded edition %T4L'-&#() Test o+ >ritten Language %T4>L-/) ;or3 $() conducted intervie!s and consultation. 0s. 0c'anne +ound Student to present strengths !ith expressive and receptive language s<ills !hile de3onstrating di++icult7 !ith shi+ting his +ocus o+ attention and reading +acial expressions. 6e also de3onstrated slo! per+or3ance !ith !ritten tas<s. 0s. 0c'anne reco33ended +or3al services to address prag3atic language di++iculties and acco33odations to address his !ea<nesses %S#-/(. 11. Jaren ,o!e) o+ 0erri3ac< #ducation 'enter) conducted Student9s t!o-da7 @ocational $ssess3ent starting on Septe3ber 10) 200-) at the re5uest o+
*

Lexington %P#-1*(. 0s. ,o!e per+or3ed the 0c'arron-"ial S7ste3s @ocational evaluation !hich incorporates a nu3ber o+ intellectual %>echsler $dult ntelligence Scale) Peabod7 Picture vocabular7 Test-,evised) >ide ,ange $chieve3ent Test-4() sensor7 %2ender @isual 0otor 1estalt Test) 6aptic @isual "iscri3ination Test() 3otor %0c'arron $ssess3ent o+ 8euro3uscular "evelop3ent() e3otional %4bservational #3otional nventor7 6() copingAadaptive behavior %Street Survival S<ills Kuestionnaire .) "ial 2ehavior ,ating Scale() and 3e3or7 %Perceptual 0e3or7 Tas<s( instru3ents. She also ad3inistered the >ide ,ange nterest 4pinion %>, 4T2( and Situational $ssess3ent !hich involves an on the Fob evaluation observation b7 Fob coaches andAor e3plo7ers !hich see< to assess Student9s abilit7 to appl7 s<ills to real li+e situations. Student !as cooperative and polite during the evaluation although at ti3es he expressed that the tas<s presented !ere not challenging enough +or hi3. Student expressed interest in the energ7 +ield) speci+icall7 in explosives) various +or3s o+ !eaponr7 and lasers) as !ell as in the process o+ understanding ho! things +unction b7 ta<ing the3 apart. 6e hopes to secure a Fob in the de+ense industr7 !or<ing !ith lasers) in a co3pan7 such as ,a7theon or Lincoln Labs. 6e also hopes to enFo7 autono3ous living in the co33unit7 !ith 3ini3al assistance %P#-1*(. 12. The results o+ 0s. ,o!e9s evaluation suggest a +ocus on the develop3ent andAor acco33odation o+ s<ills in the +ollo!ing order o+ priorit7C #3otionalA 2ehavioral= 'opingA$daptive 2ehavior= Sensor7= 0otor= and ntellectual. ,egarding the e3otional area) 0s. ,o!e +ound that Student9s Bi3pulsivit7) anxiet7) depression Lalbeit not clinical depressionM) socialiIation and sel+conceptsD !ere areas needing progra33atic intervention. Student scored !ithin the average range in the Street Survival S<ills Kuestionnaire and !hile the report notes nu3erous strengths in various areas) it also notes a need +or progra33ing intervention regardingC Bdressing neatl7 and appropriatel7 +or the situation= abilit7 to handle living arrange3ents independentl7= e++ect on per+or3ance and 3orale o+ peers= ph7sical sta3ina +or li+ting) loading or prolonged standing)LandM abilit7 to stand up to stress+ul situationsD %P#-1*(. n the sensor7 test) he per+or3ed !ithin the general population range !ith !ea<nesses in e7e-hand coordination. ,elative !ea<nesses !ere noted !ith le+t and right upper bod7 coordination) and right side balance in his 3otor assess3ents. Severe !ea<nesses !ere noted !ith Student9s le+t and right +ine 3otor speed as !ell as !ith balancing !ith his e7es closed. ntellectual +unctioning and perceptual 3e3or7 s<ills +ell !ithin the average to above-average range !ith relative strengths in se5uential visual 3e3or7 and needs in the area o+ recent 3e3or7
6

The report indicates that ans!ers to this inventor7 !ere based on observations o+ Student9s dail7 routines during the 200.-200H school 7ear. . This 5uestionnaire see<s to gain in+or3ation regarding a student9s Bpersonal) social and !or< adFust3ent behaviors !hich relate to the individual9s abilit7 to +unction autono3ousl7 in the co33unit7 or !or< environ3entD. The evaluator relied on observations o+ Student during the 200.-200H school 7ear regarding co3pletion o+ the 2ehavior ,ating Scale %P#-1*(.

%recalling i3ages a+ter a period o+ ti3e( but !ith the Babilit7 to 3eet the recent 3e3or7 re5uire3ents o+ 3ost occupational tas<s.D The >, 4T2 results sho!ed Student9s average level o+ interest in the area o+ +actor7Aasse3bl7 !or<. Student9s 0other !as present during at least part o+ the vocational evaluation %P#-1*(. 1/. 0s. ,o!e !as unable to per+or3 the situational portion o+ her assess3ent as Parent expressed concern that the !or<sites suggested b7 0s. ,o!e !ere not appropriate. $ conversation too< place a3ong Student) Parent and 0r. Ti3 'allahan) 0S#' Progra3 0anager) at the re5uest o+ 0s. ,o!e) in !hich it !as explained to Parent and Student that the purpose o+ this portion o+ the evaluation !as to assess basic vocational s<ills and that an7 o+ the !or< site options presented b7 0s. ,o!e !ould be appropriate. Parent disagreed and o++ered to contact an individual at ,a7theon so that the situational evaluation could ta<e place at ,a7theon. >hen contacted a +e! !ee<s later) Parent had not contacted the person at ,a7theon and stated that the situational assess3ent Bshould not be done until a !or< site appropriate to LStudent9sM interest and abilities !as available.D 0s. ,o!e 3ade nu3erous reco33endations to address Student9s !ea<nesses and reco33ended exposure to various vocational experiences that could help Student deter3ine appropriate careers to pursue. She also reco33ended contacting 0assachusetts ,ehabilitation 'o33ission in the +uture) as !ell and other agencies that could assist Student in obtaining and 3aintaining e3plo73ent %P#-1*(. 14. Lexington9s 4ccupational Therap7 assess3ent !as co3pleted b7 0aureen S3ith->oFci<) 0S) 4T,AL) on Septe3ber 16) 200- %S#-4(. The purpose o+ her evaluation !as to assess Student9s +ine 3otor) visual 3otor and sensor7 3otor s<ills as !ell as activities o+ dail7 living s<ills re5uired +or Student to access the school curricula. Student9s gross 3otor s<ills had been previousl7 assessed in 0a7 200-. 0s. >oFci< ad3inistered the Test o+ 6and!riting S<ills) the 24T-2 2runin<s-4serets<7 Test o+ 0otor Pro+icienc7 %+ine 3otor co3posites() "unn9s Sensor7 Pro+ile %Kuestionnaires +illed out b7 Student and Parent() and she conducted clinical observations. $lthough stating to 0s. >oFci< that he had Bever7 +ine 3otor and visual 3otor test there isD) Student !as cooperative during the testing session even though he had di++icult7 sta7ing on tas<. Student also expressed +rustration at being as<ed to tr7 the sa3e !riting and organiIational 3ethods he had atte3pted in the past) over again !hen those 3ethods had not !or<ed +or hi3. The evaluator allo!ed Student so3e +lexibilit7 !ith the test) custo3iIing it +or hi3)so as to obtain the 3axi3u3 in+or3ation possible on his strengths and !ea<nesses %S#-4(. 1*. 0s. >oFci< +ound that Student9s hand 3uscle tone and strength !ere !ithin nor3al li3its. Student9s visual 3otor s<ills and +ine 3otor s<ills +ell !ithin the average range although he reported pain !ith !riting and his sensor7 issues appeared to be signi+icant %S#-4(. 6e sho!ed issues !ith d7spraxia but !as not
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+ound to be in need o+ 4ccupational Therap7 services at the ti3e o+ the evaluation. 0s. >oFci< reco33ended consultation to Student and his teachers around sensor7 issues) including a sensor7 diet and acco33odations %S#-4(. 16. Patt7 0cTigue) 0S#) $TP) per+or3ed the $ssistive Technolog7 assess3ent on behal+ o+ Lexington) dated Septe3ber H) 200- %S#-*(. 6er evaluation ho!ever) had begun in Eul7 200-. 0s. 0cTigue revie!ed Student9s #P o+ Eanuar7 200H through Eanuar7 200-= the $rchitects +or Learning >riting ntervention Support b7 Jristen 0allet 2ator) 0S) '''-SLP o+ 0a7 1-) 200.= the neurops7chological screening b7 sabel L. Stevens) Ps7.".) dated Eanuar7 1*) 200.= $LL tech 8otes +ro3 8ove3ber 200* through Eune 2006= and she had discussions !ith Sherrie 'oughlin) Lexington9s 6igh School Special #ducation Supervisor) and Parent. She concluded that Student) !ho !as +ound to be co3puter literate and could operate co3puters independentl7) presented di++iculties !ith organiIation) 3e3or7 and +ine 3otor s<ills. $s a result) she reco33ended that he be provided training and guidance) as !ell as use o+ a co3puter. She +urther reco33ended evaluation !ith co3puter access in his educational setting. 0s. 0cTigue also suggested evaluation o+ "ragon 8aturall7Spea<ing) speech-to-text so+t!are) and graphic organiIation in the educational setting %S#-*(. $lternative 3eans to standard note ta<ing in the classroo3 setting should be evaluated to address his upper extre3it7 pain and +atigue. She +ound i3perative that an7 o+ the tools considered be tried b7 Student in the educational setting to deter3ine their use+ulness. 2ecause o+ the li3ited in+or3ation regarding Student and inabilit7 to observe hi3 in the educational setting) 0s. 0cTigue !as unable to 3a<e $sistive Technolog7 reco33endations %S#-*(. 1.. 4n 4ctober 1/) 200-) Parent !rote to Lexington re5uesting independent evaluations in the areas o+C Speech and Language) $ssistive Technolog7) $dapted Ph7sical #ducation) ndependent Living S<ills) @ocationalATransitional and Ps7chologicalA#ducational on the basis that the evaluations per+or3ed b7 Lexington !ere not co3prehensive %S#-.(. Parent +urther stated that other evaluations sought b7 her had not been per+or3ed. Parent sought 3ore guidance regarding Student9s transition to adulthood and a deeper understanding o+ his strengths and !ea<nesses. 1H. Parent proposed to use the +ollo!ing evaluators to per+or3 Students9 independent evaluationsC Jristen 2ator) SLP-''' and 2onnie Singer) SLP-''') +or the Speech and Language evaluation= Jaren Eano!s<i) 4T,) at #dTech Solutions +or the $ssistive Technolog7 evaluation %Parent stated that Lexington had previousl7 +unded an evaluation b7 this evaluator(=

Eohn Pasarini +or the $daptive Ph7sical #ducation %a +or3er e3plo7ee o+ Lexington(= Jaren Levine) Ph.".) ndependent Living S<ills evaluation= "eb 6art) #d.".) to conduct the @ocational Transition evaluation= Linda 6a3ilton-1osco +or the 4ccupational Therap7 and Sensor7 ntegration evaluation= "ierdre @. Loves<e7) Ph.".) +or the Ps7chological and #ducational evaluation %S#-.(. n her re5uest) Parent stated that i+ an7 o+ the above-re+erenced evaluators !ere unavailable to conduct the evaluation) she !ould substitute that individual !ith another !ith si3ilar credentials %S#-.(. 1-. The report o+ Student9s vocational evaluation !as co3pleted b7 Lexington on Septe3ber 10) 200- and the report beca3e available on 4ctober 1-) 200-. 20. Lexington +iled its re5uest +or 6earing challenging Parent9s re5uest +or publicl7+unded independent evaluations on 4ctober 20) 200-. 21. $ Tea3 3eeting !as held on 8ove3ber 4) 200- at !hich ti3e the evaluations per+or3ed b7 Lexington !ere discussed. The Tea3 3eeting had been dela7ed due to scheduling con+licts. CONCLUSIONS OF LAW Student is an individual !ith a disabilit7 +alling !ithin the purvie! o+ the ndividuals !ith "isabilities #ducation $ctH % "#$( and the state special education statute.- This 3atter co3es be+ore the 2S#$ on Lexington9s re5uest +or a deter3ination that its evaluations o+ Student !ere co3prehensive and appropriate) and that it is there+ore) not responsible to +und t!o o+ the independent evaluation sought b7 Parent and that it need onl7 pa7 the established rates +or the independent evaluations it has agreed to +und. &pon consideration o+ docu3ents and argu3ents sub3itted b7 the Parties) and rel7ing on the ;indings o+ ;act section o+ this decision) conclude that the evidence presented b7 Lexington supports a +inding that !ith the exception o+ the Ph7sical Therap7 evaluation) its other evaluations !ere co3prehensive and appropriate and that it is not responsible to pa7 a3ounts in excess o+ those approved under the 0assachusetts "ivision o+ 6ealth 'are ;inance and Polic7 ,egulations) pursuant to 60/ '0, 2H.04%*(%a(. n this regard) Lexington 3et its burden o+ persuasion pursuant to Schaffer v. Weast) 126 S.'t. *2H %200*(10. 07 reasoning +ollo!sC
H -

20 &S' 1400 et seq. 01L c. .12. 10 Schaffer v. Weast) 126 S.'t. *2H %200*( places the burden o+ proo+ in an ad3inistrative hearing on the part7 see<ing relie+.

The "#$11 regulations con+er upon parents o+ disabled students the right to proceed !ith independent evaluations at public expense. /4 ';, /00.*02. The regulations de+ine an independent evaluation as an #valuation conducted b7 a 5uali+ied exa3iner !ho is not e3plo7ed b7 the public agenc7 responsible +or the education o+ the child in 5uestion. /4 ';, /00.*02%a(%/(%i(. ;or purposes o+ this section) the ter3 public agenc7 is e5uivalent to local educational agenc7) that is) the particular school district responsible +or the student in 5uestion. The right to an independent evaluation arises + the parent disagrees !ith an evaluation obtained b7 the public agenc7) subFect to the conditions in paragraphs %b(%2( through %4( o+ this section. /4 ';, /00.*02%b(%1(. + the re5uisite conditions are 3et) the +ederal regulations re5uire that the evaluation be provided at public expense) that is) that the public agenc7 either pa7s +or the +ull cost o+ the evaluation or ensures that the evaluation is other!ise provided at no cost to the parent) consistent !ith /00.10/. /4 ';, /00.*02%a(%/(%ii(. That is) school districts 3ust pa7 the +ull cost o+ the evaluation sought b7 parents or ensure that the evaluation !ill be provided at no cost to the parents. 'onsistent !ith this provision) school districts are re5uired to suppl7 parents !ith a list o+ service providers !ho abide b7 the state guidelines regarding co3petenc7 to per+or3 the evaluation as !ell as the rate structure +or independent evaluations. 12 States are le+t to regulate +urther consistent !ith +ederal la!. $dditionall7) !hen parents re5uest an independent evaluation the +ederal regulations discourage unnecessar7 dela7s b7 school districts re5uiring school district to either pa7 +or the evaluation or re5uest a hearing !hen it believes that its evaluation is appropriate. /4 ';, /00.*02%b(%2(. 1/

11

See 20 &S' 141*%d(%2(%$(. >hen a parent re5uests an independent evaluation) the +ederal regulations +urther re5uire school districts to provide parents !ith BN in+or3ation about !here an independent educational evaluation 3a7 be obtained) and the agenc7 criteria applicable +or independent educational evaluations as set +orth in paragraph %e( o+ this sectionD to ensure that parents are able to select providers !ho act in concert !ith state 3andates. /4 ';, /00.*02. 8o challenge !as raised on this issue at hearing. 1/ The school district is also re5uired to re5uest a hearing i+ it is challenging the independent evaluation obtained b7 the parent on the basis o+ +ailure to 3eet agenc7 criteria. /04 ';,.*02%b(%2(%ii(.
12

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'onsistent !ith +ederal la! and regulations) the 0assachusetts special education regulations provide parents a right to independent evaluations as stated in 60/ '0, 2H.04%*(%a( !hich provides %*( ndependent education evaluations. &pon receipt o+ evaluation results) i+ a parent disagrees !ith an initial evaluation or reevaluation co3pleted b7 the school district) then the parent 3a7 re5uest an independent education evaluation. %a( $ll independent education evaluations shall be conducted b7 5uali+ied persons !ho are registered) certi+ied) licensed or other!ise approved and !ho abide b7 the rates set b7 the state agenc7 responsible +or setting such rates.14 &ni5ue circu3stances o+ the student 3a7 Fusti+7 an individual assess3ent rate that is higher than that nor3all7 allo!ed. n su3) both the +ederal and 0assachusetts regulations provide that the right to an independent evaluation arises a+ter the school district has first conducted an evaluation in the area parent disputes %e3phasis supplied(. 0assachusetts ,egulations +urther provide that + the parent is re5uesting an independent education evaluation in an area not assessed b7 the school district) N the school district shall respond in accordance !ith the re5uire3ents o+ +ederal la!. The district shall either agree to pa7 +or the independent education evaluation or !ithin +ive school da7s) proceed to the 2ureau o+ Special #ducation $ppeals to sho! that its evaluation !as co3prehensive and appropriate. %#3phasis added( + the 2ureau o+ Special #ducation $ppeals +inds that the school district9s evaluation !as co3prehensive and appropriate) then the school district shall not be obligated to pa7 +or the independent education evaluation re5uested b7 the parent. 60/ '0, 2H.04%*(%d(. n the instant case) Lexington disputes the evaluations sought b7 Parent and opted to +ile an appeal !ith the 2S#$ !ithin the prescribed +ive school da7s. 1iven that Lexington see<s di++erent outco3es regarding its responsibilities vis vis the independent evaluations sought b7 Parent) address each group separatel7. $daptive Ph7sical #ducation and ndependent Living S<illsA;unctional Living S<ills evaluationsC

14

n 0assachusetts) the agenc7 responsible +or setting the rates +or independent evaluations is the "ivision o+ 6ealth 'are ;inance and Polic7 ,egulations.

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Parent see<s a co3prehensive $daptive Ph7sical #ducation 1* evaluation !hich should include not onl7 Ph7sical #ducation but also participation in recreation) progra3 develop3ent) or recreation and leisure needs. Parent clai3s that +ailure to obtain such a thorough $daptive Ph7sical #ducation evaluation in the past resulted in a lac< o+ specialiIed Ph7sical #ducation planning +or Student. "r. Lovec<7) the neurops7chologist on !ho3 Parent relies) described specialiIed Ph7sical #ducation +or Student to include individualiIed sports such as s!i33ing and horsebac< riding. She also reco33ended that Student receive health training designed +or adolescents !ith $sperger9s S7ndro3e) to include topics such as health practices) h7giene and sa+e sex %P#-/1(. Lexington obFects to this evaluation on the basis that issues relative to $daptive Ph7sical Therap7 !ere addressed through the district9s Ph7sical Therap7 evaluation) andAor 4ccupational Therap7 evaluations. Lexington) ho!ever) does not obFect to Parent9s re5uest +or an independent 4ccupational Therap7 evaluation at rate setting rates as discussed later in this decision. ,egarding the $daptive Ph7sical #ducation evaluation sought b7 Parent) the evidence sho!s that Lexington conducted a 3odi+ied ph7sical therap7 evaluation) not an adaptive ph7sical therap7 evaluation. Parent re5uests an evaluation in an area not assessed b7 the district) but has not presented an7 current in+or3ation in support o+ an adaptive ph7sical therap7 evaluation. t is assu3ed) and recogniIed b7 Lexington) that due to Student9s 3edical issues) endurance activitiesAph7sical activities in !hich he engages need to be 3odi+ied. >hile Lexington9s evaluation success+ull7 presents a picture o+ Student9s gross 3otorAph7sical condition) it +ails to o++er an7 reco33endations regarding provision o+ ph7sical therap7) leaving the parties !ith little guidance as to !hether Student re5uires ph7sical therap7) or 3odi+ied Ph7sical #ducation) and !hat speci+icall7 he should receive. There+ore) Parent is entitled to an independent Ph7sical Therap7 evaluation. Turning to Parent9s re5uest +or the ndependent Living S<illsA;unctional Living S<ills assess3ent) she relies on 2S#$ decisions to argue that Lexington bears responsibilit7 to prepare Student +or post-secondar7 education) Fobs and independent living in the co33unit7. Parent asserts that ndependent Living S<ills include broad areas not assessed b7 Lexington as !ell as direct observation o+ Student in 3ultiple settings) and intervie!s !ith individuals involved in Student9s li+e. Parent +urther states that Lexington9s testing results +ail to 3a<e a connection !ith transitional planning) explaining that the evaluator) 0s. ,o!e stated in her assess3ent that Student9s poor understanding o+ situations depicting t7pical teenage bo7s !as attributed to issues related to Student9s $sperger9s S7ndro3e and Bother reasonsD. Parent suggests that the Bother reasonsD re+erred to in the report) are the result o+ ho3e schooling !hich caused hi3 to be isolated +ro3 other t7picall7-developing teenage bo7s. Parent alleges that
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n her sub3issions) Parent re+ers to adaptive ph7sical education as BassistedD ph7sical education. >herever she uses the ter3 assisted ph7sical education) it is understood that she re+ers to adaptive ph7sical education instead.

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ho3e schooling !as necessar7 because o+ Lexington9s +ailure to o++er a school place3ent. She challenges Lexington9s report on the basis that it o++ers no plan +or Student to 3ove to!ard independent living. Lexington argues that an7 issues relative to the areas o+ ndependent or ;unctional Living S<ills !ere addressed through the @ocationalATransitional andAor Ps7chological evaluations) and argues that these areas do not need to be assessed separatel7. ,evie! o+ P#-1*) the vocational evaluation b7 "r. ,o!e) and S#-2) "r. @odvar<a9s ps7chologicalAeducational evaluation sho!s that the areas o+ ;unctional Living S<ills and independent living are indeed covered b7 these evaluations) and reco33endations are o++ered b7 both) the i3ple3entation o+ !hich 3a7 be discussed in 3ore detail at a Tea3 3eeting. n her report) 0s. ,o!e notes Student9s areas o+ strength %to !it) intellectual) sensor7) copingA adaptive behavior and 3otor +actors() and 3a<es nu3erous reco33endations regarding areas that re5uire attention and vocational planning that includes opportunities +or Fob exploration. She raised concerns regarding Student9s e3otionalAbehavioral and also copingAadaptive needs %e.g.) Bdressing neatl7 and appropriatel7 +or the situation) abilit7 to handle living arrange3ents independentl7) e++ect on per+or3ance and 3orale o+ peers) ph7sical sta3ina +or li+ting) loading) or prolonged standing) and abilit7 to stand up to stress+ul situationsD( %P#-1*(. She also suggested engaging agencies such as the 0assachusetts ,ehabilitation 'o33ission to assist !ith plans +or +urther education) obtaining and 3aintaining Fobs. "r. @odvar<a notes that the purpose o+ her evaluation !as to gain updated in+or3ation regarding Student9s abilit7 levels) acade3ic +unctioning) and executive and e3otional +unctioning. "r. @odvar<a re3ar<ed on the necessit7 o+ using 3easures that had not been used previousl7 due to the extensive testing conducted b7 "r. Lovec<7 approxi3atel7 +our 3onths prior to Lexington9s evaluation. The +act that Student has not been enrolled in a +or3al school progra3 +or over a 7ear also 3ade it di++icult +or "r. @odvar<a to assess certain 3easures o+ Student9s executive +unctioning as input +ro3 teachers !as lac<ing %S#-2(. ,egarding the personalit7 +unctioning) she relied greatl7 on Parent9s input on the 2ehavior $ssess3ent S7ste3 +or 'hildren-#d.-2) suggesting di++iculties in activities o+ dail7 living and +unctional co33unication. 4n activities o+ dail7 living) Parent reported that Student al3ost al!a7s re5uires help or re3inders +ro3 others regarding personal h7giene) schedules and organiIation. Support !as reco33ended in these areas to address Student9s variable executive +unctioning abilit7 %S#-2(. The evidence sho!s that the a+ore3entioned evaluations provide a starting point to address Student9s ;unctional Living S<ills and ndependent Living S<ills. These areas !ill have to be re-assessed and reco33endations 3odi+ied as Student continues to develop and the reco33endations are actuall7 put in practice. 1iven that Lexington has agreed to +und an independent @ocational evaluation and in light o+ "r. Lovec<79s
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+ort7-+ive page) extraordinaril7 thorough report) there is no basis to grant Parent9s re5uest +or a separate independent ;unctional Living S<ills evaluation. $s stated earlier) there is currentl7 a !ealth o+ in+or3ation available on Student that the Tea3 can access to dra+t a transitional plan +or Student. There+ore) Parent is not entitled to the a+ore3entioned evaluations. @ocational) Speech and Language) 4ccupational) and $ssistive Technolog7 independent evaluationsC $ccording to Parent) Lexington9s vocationalAtransitional evaluation +ails to address either ndependent Living S<ills or @ocationalATransitional needs. The evaluation report e3phasiIes e3otionalAbehavioral and copingAadaptive behaviors as areas to +ocus on +or the purpose o+ developing acco33odations and progra33ing. The report 3entions areas o+ vocational interest pursuant to the >ide ,ange nterest 4pinion Test !hich include +actor7 asse3bl7) cleaning) building repair) and heav7 e5uip3entA3achine operator Fobs !hich Parent states are inappropriate given Student9s 0itochondrial disease and 1rand 0al seiIures. Parent concedes that the report ac<no!ledges Student9s issues !ith 3e3or7 and ph7sical li3itations) as !ell as the need to get the 0assachusetts ,ehabilitation 'o33ission involved in the +uture. 6o!ever) she argues that it ignores Student9s interest in the +ield o+ energ7 and lasers. $lso) !hile the Street Survival S<ills Surve7 addresses Student9s current level o+ ndependent Living S<ills and @ocationalA Transitional s<ills) according to Parent) in general the assess3ent +ails to address issues relative to independent living. Lexington asserts that the @ocational $ssess3ent report beca3e available to Lexington on 4ctober 1-) 200-) and as o+ that date had not been +or!arded to Parent. Since Parent re5uested an independent evaluation in this area on 4ctober 1/) 200-) prior to seeing Lexington9s evaluator9s report) Lexington initiall7 obFected to an independent assess3ent stating that Parent9s re5uest !as pre3ature. $dditionall7) Lexington argued that Student presented no exceptional circu3stances !arranting a higher rate than the one set b7 the 0assachusetts "ivision o+ 6ealth 'are ;inance and Polic7 ,egulations +or this evaluation. See 60/ '0, 2H.04%*(%a(. n its response to Parent9s argu3ent) received on 8ove3ber 2/) 200-) Lexington agreed to +und an independent vocational assess3ent. Lexington +urther agreed to +und independent evaluations in the areas o+ Speech and Language) 4ccupational) and $ssistive Technolog7 as !ell as the @ocationalA Transitional planning assess3ent) at the rates established b7 the 0assachusetts "ivision o+ 6ealth 'are ;inance and Polic7) since) according to Lexington) no exceptional circu3stances exist in support o+ establishing a higher rate. Parent challenges Lexington9s position on the basis that Student +its the uni5ue circu3stances) or individual consideration categor7) as ter3ed b7 the 0assachusetts "ivision o+ 6ealth 'are ;inance and Polic7 ,egulations. 60/ '0, 2H.04%*(%a(.

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$ +inding that Student presents !ith uni5ue circu3stances !ould entitle Parent to a higher a3ount o+ rei3burse3ent because it considers that so3e students 3a7 present !ith co3plex challenges that re5uire a 3ore thorough or uni5ue evaluation. The phrase Buni5ue circu3stancesD is +ound in the 0assachusetts Special #ducation ,egulations addressing rei3burse3ent +or independent evaluations) !hich states in pertinent part Nuni5ue circu3stances o+ the student 3a7 Fusti+7 an individual assess3ent rate that is higher than that nor3all7 allo!ed. 60/ '0, 2H.04%*(%a(. ndividual 'onsideration % .'.( is de+ined !ithin the 0assachusetts "ivision o+ 6ealth 'are ;inance and Polic7 ,egulations as Those rates +or authoriIed services that are deter3ined b7 a govern3ental unit based upon the nature) extent) and need +or such service and the degree o+ s<ill and ti3e re5uired +or its provision. Providers 3ust 3aintain ade5uate records to deter3ine the appropriateness o+ their .'. clai3s and 3ust provide these docu3ents to the purchasing agenc7 upon de3and. 114./ '0, /0.02. t is in this light that exa3ine !hether individual consideration is !arranted because o+ Buni5ue circu3stancesD16 in the assess3ent areas sought b7 Parent in the a+ore3entioned areas. Lexington does not dispute that Student presents !ith a co3plex learning pro+ile or that he has slo! processing s<ills. t ho!ever) states that its evaluators !ere able to co3plete and conduct co3prehensive evaluations !ithin a reasonable ti3e+ra3e. Parent disputes Lexington9s assertions stating that because Student is unable to process in+or3ation at a nor3al rate) or 3ove) or dress) or eat at a nor3al pace) his evaluations !ill re5uire additional ti3e. She relies on nu3erous docu3ents dating bac< to 2004 and 200*1. %P#-24= P#-2*= P#-26(. These docu3ents ho!ever) are stale and Parent presents no current docu3entation to connect the old in+or3ation !ith Student9s current status. 'urrent in+or3ation regarding Student9s slo! execution o+ tas<s is +ound in Lexington9s Speech and Language evaluation %S#-/( on !hich Parent relies. Parent points out that the evaluator) 0s. 0c'anne) states in her report that she !as unable to ad3inister so3e o+ the test batteries during the +our hours allotted to the Speech and Language evaluation because o+ Student9s slo! speed in co3pleting tas<s !hich she attributed to his Bdi++icult7 shi+ting his +ocus o+ attention easil7N Land driveM to co3plete his dialogue on a subFect be+ore being able to transition to a di++erent 3atterD %S#-/(. n spite o+ not ad3inistering all o+ the test batteries) 0s. 0c'anne concluded
16 1.

See In Re: Triton Regional School District) 1/ 0S#, /H0) /H. %200.(. The docu3ents appear to be #P 3eeting 3otes.

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that the test results !ere reliable and that the7 presented an accurate 3easure o+ Student9s abilities in Speech and Language. She also re3ar<ed that Student9s attending s<ills during the one-on-one testing session !ere excellent. $lthough Parent alleges that Student9s slo!ness and co3plex diagnosis re5uires additional ti3e to co3plete the evaluations) she presents no current evidence that additional ti3e is re5uired b7 ever7 single independent evaluator in all o+ the areas to be evaluated. Parent did not produce in+or3ation to sho! that uni5ue circu3stances exist in each individual area and there+ore) none o+ the evaluations can be co3pleted in the prescribed ti3e) and +or the allo!able rates. See In Re: Triton Regional School District) 1/ 0S#, /H0) /H6 %;igueroa) 200.(. Parent also 3ade no sho!ing that she 3ade all reasonable atte3pts to identi+7 or locate 5uali+ied evaluators !ho !ould abide b7 the 0assachusetts rate-setting rates. Lexington +urther argues that pursuant to 114./ '0, /0.00 et. seq.) i+ an evaluator anticipates that a student presents uni5ue circu3stances !hich !ould !arrant individual consideration and that additional ti3e !ill be needed to conduct the evaluation) the evaluator 3ust raise this issue !ith the district prior to initiating the evaluation) and 3ust explain the particular circu3stances presented b7 the student !hich !arrant individual consideration.1H The evaluator 3ust also provide an esti3ate o+ the additional ti3e re5uired !hich 3ust be billed at the 3axi3u3 hourl7 rate o+ O62.*0 per hour. n the case at bar) Parent has presented no evidence as to !hether the evaluators she selected accept rate setting rates) !hether the evaluators believe that exceptional circu3stances call +or an individual consideration in excess o+ the ti3e allotted b7 the 0assachusetts "ivision o+ 6ealth 'are ;inance and Polic7 ,egulations) and i+ so provide the esti3ated additional ti3e it !ill ta<e hi3Aher to conduct the evaluation. n this regard) there is insu++icient evidence to support a +inding that the independent evaluations !arrant additional ti3e and should be paid in excess o+ !hat has been o++ered b7 Lexington on the basis o+ individual consideration. #5uall7 unpersuasive is Parent9s assertion that evaluators !ho accept rate setting rates lac< the re5uisite training) expertise and experience to properl7 evaluate Student. 'onsistent !ith the "#$ re5uire3ents) Lexington asserts that it provided Parent in+or3ation regarding area hospitals that accept rate setting rates) as hospitals in the 'o33on!ealth o+ 0assachusetts accept 0edicaid rei3burse3ent rates !hich are consistent !ith the rates set b7 the 0assachusetts "ivision o+ 6ealth 'are ;inance and Polic7 ,egulations. $dditionall7) Lexington argues that 3an7 5uali+ied individuals in the 'o33on!ealth accept rate setting rates. >hile Parents are al!a7s entitled to select) and proceed !ith) the individuals o+ their choice to conduct private evaluations o+ students) this does not 3ean that districts are auto3aticall7 responsible to cover those

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In Re: oston !u"lic Schools) 14 0S#, 12.) 1/* %200H(.

16

expenses. "istricts are onl7 3andated to provide independent evaluations consistent !ith +ederal and state la!. 6ere) the record lac<s an7 evidence that Parent sought out evaluators !ho accepted rate setting rtes) as Lexington correctl7 points out. There is absolutel7 no basis to support Parent9s clai3s. Lastl7) Lexington asserts that it 3a7 have agreed to !aive the rate setting rates +or $ssistive Technolog7) 4ccupational Therap7) $daptive Ph7sical #ducation and Ph7sical Therap7 as !ell as a co3bined Ps7chological and #ducational independent evaluations in 2004) as raised b7 Parent) and 3a7 have also agreed to pa7 the +ees +or a neurops7chological evaluation b7 "r. Lovec<7.1- %P#-1.= P#-1H= P#-1-= P#- 20= P#21( This ho!ever) does not 3ean that Lexington is +orever bound to cover evaluations outside the rates established b7 the 0assachusetts "ivision o+ 6ealth 'are ;inance and Polic7 ,egulations. Parent9s assertions regarding evaluations that too< place in 2004 are irrelevant to the issue o+ !hether uni5ue circu3stances exist toda7) and the +act that Lexington 3a7 have agreed to +und those in the past does not bind the district into the +uture. n 200-) Lexington has opted to dispute Parent9s re5uest and Parent has presented no evidence to support a +inding that Lexington 3ade a co33it3ent to +und an7 independent evaluation in 200- or 2010 at a rate higher than the prescribed rates. There+ore) a +inding is entered in +avor o+ Lexington. There+ore) regarding the @ocationalATransitional Planning) Speech and Language) 4ccupational) and $ssistive Technolog7 independent evaluations) Lexington 3et its burden o+ persuasion in sho!ing that it is not responsible to +und independent evaluation in these areas at rates exceeding those established b7 the 0assachusetts "ivision o+ 6ealth 'are ;inance and Polic7 ,egulations. Should Parent !ish to ta<e issue !ith the a3ounts allo!ed b7 the 0assachusetts "ivision o+ 6ealth 'are ;inance and Polic7) Parent9s recourse is not !ith the 2S#$) as the 2S#$ has no Furisdiction over the rates set b7 the a+ore3entioned agenc7. "r. Loves<79s independent neurops7chological evaluation This issue20 !as alread7 addressed b7 6earing 4++icer Putne7-Gacesh7n via ,uling) issued on 0a7 2-) 200-. n her ,uling) the 6earing 4++icer denied Parents9 re5uest. Since this issue has alread7 been adFudicated) Parent is precluded +ro3 raising it again %S#-1(. Parent9s re5uest is denied.
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P#-1.) P#-1H) P#-1-) P#-20) and P#- 21 include correspondence bet!een Parent and Lexington dating bac< to 0a7 2004) involving Parent9s re5uest +or Lexington to +und an independent neurops7chological evaluation o+ Student outside the rate setting rates) including "r. Lovec<79s esti3ate o+ the length o+ ti3e) proposed areas o+ evaluation and cost associated !ith her evaluation) and Lexington9s agree3ent to +und the evaluation !ithin the para3eters proposed b7 "r. Lovec<7 on the basis o+ Bextenuating circu3stances.D 20 n her sub3ission Parent 3a<es re+erence to a 200H settle3ent agree3ent bet!een the Parties. The 2S#$ lac<s Furisdiction to en+orce settle3ent agree3ents) and 3ore i3portantl7) the issue o+ "r. Lovec<79s evaluation has alread7 been adFudicated as stated above.

1.

The totalit7 o+ the evidence over!hel3ingl7 suggests that Student has been ade5uatel7 and thoroughl7 evaluated b7 nu3erous pro+essionals in relevant areas. >hile Parent is entitled to independent evaluations in the areas discussed supra) the independent evaluators 3a7 be able to rel7 on the !ealth o+ in+or3ation alread7 available on Student to co3plete the evaluations !ithin the established ti3e+ra3es. ,egarding the vocational evaluation) Lexington shall co3plete the situational portion o+ that evaluation +orth!ith at a !or< site option such as ,a7theon i+ Parent can arrange +or this to occur !ithin one !ee< o+ issuance o+ this decision) or at an7 other location dee3ed appropriate b7 0s. ,o!e andAor 0r. 'allahan. 1iven the a3ount o+ available in+or3ation on Student) the Parties are advised to +ocus their attention on progra33ing that can be i3ple3ented as soon as possible. ORDER 1. Lexington shall +und Parent9s re5uested independent evaluations in the areas o+ Speech and Language) $ssistive Technolog7) 4ccupational Therap7 inclusive o+ a Sensor7 Pro+ile assess3ent) Ph7sical Therap7 evaluation) @ocationalA Transitional planning evaluation) consistent !ith the rates set b7 the 0assachusetts "ivision o+ 6ealth 'are ;inance and Polic7. 2. Lexington shall co3plete the situational portion o+ its @ocational evaluation b7 Eanuar7 1*) 2010) and Student shall be 3ade available +or this evaluation. /. Parent is not entitled to rei3burse3ent +or "r. Lovec<79s 8europs7chological evaluation as previousl7 deter3ined b7 6earing 4++icer 'atherine Putne7-Gacesh7n. So 4rdered b7 the 6earing 4++icer) PPPPPPPPPPPPPPPPPPPPPPPPPPP ,osa . ;igueroa "atedC "ece3ber .) 200-

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De!em+er ,- .//0

COMMONWEALTH OF MASSACHUSETTS BUREAU OF SPECIAL EDUCATION APPEALS

LE1IN)TON PUBLIC SCHOOLS BSEA 2 3/4.5/6

BEFORE ROSA I7 FI)UEROA HEARIN) OFFICER PARENTS- PRO4SE COLB8 BRUNT- ES97- ATTORNE8 FOR LE1IN)TON PUBLIC SCHOOLS

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