Ann v. Springfield Public Schools – BSEA # 06-1175



<br /> Ann v. Springfield Public Schools – BSEA # 06-1175<br />

COMMONWEALTH OF MASSACHUSETTS

BUREAU OF SPECIAL EDUCATION APPEALS

In re: Ann1 v. Springfield Public Schools

BSEA# 06-1175

RULING ON PARENTS’ MOTION FOR DEFAULT JUDGMENT AND ORDER FOR STAY PUT

This ruling is rendered pursuant to M.G.L. Chapters 30A and 71B; 20 U.S.C.§1400 et seq; 29 U.S.C. §794; and the regulations promulgated under each of these statutes.

A Hearing on Parents’ Motion for Default Judgment and Order for Stay Put in the above-entitled matter was held telephonically on December 8, 2005 for approximately 1¼ hours.

STATEMENT OF THE CASE

On August 30, 2005 Parents filed a Hearing Request with the Bureau of Special Education Appeals (BSEA). On August 31, 2005 the BSEA sent a Notice of Hearing scheduling the hearing for October 4, 2005. On September 7, 2005 Springfield Public Schools’ (SPS) attorney filed a Notice of Appearance; a request for postponement of the October 4, 2005 hearing date; and a request for a ten day extension for filing its response. On September 19, 2005 SPS’ attorney filed SPS’ Response to Parents’ Hearing Request. On September 26, 2005 the Hearing Officer granted SPS’ postponement and scheduled a pre-hearing conference call for October 6, 2005. On September 27, 2005 Parents’ attorney filed Parents’ Motion for Default Judgment and Order for Stay Put. On October 3, 2005 SPS’ attorney requested an extension until October 11, 2005 to respond to Parents’ Motion. The pre-hearing conference call took place on October 6, 2005 and the parties agreed that SPS’ response would be filed by October 11, 2005 and that a pre-hearing conference and motion session would take place on October 14, 2005. On October 11, 2005 SPS filed its Opposition to Parents’ Motion for Default Judgment and Order for Stay Put along with accompanying affidavits. On October 14, 2005 a pre-hearing conference took place but the motion session was deferred while parties attempted to work out an interim resolution. On November 1, 2005 SPS’ attorney notified the hearing officer that an interim resolution would not be possible. On November 3, 2005 the hearing officer rescheduled a pre-hearing conference call for November 7, 2005, later changed to November 10, 2005 per agreement of the parties. The pre-hearing conference call took place on November 10, 2005. Parents attorney requested oral argument on Parents’ motion and the first available date for all parties was December 8, 2005. A timeline was established giving Parents the right to file written affidavits, supplemental documentation or additional written argument, and SPS one week to respond. The motion session took place on December 8, 2005.

In deciding this motion the hearing officer has considered all written materials filed by the parties since Parents’ hearing request on August 30, 2005; and the oral arguments made by Parents’ and SPS’s counsel at the December 8, 2005 motion hearing.

FACTUAL BACKGROUND

Ann is a 10 year old girl who is currently in the fifth grade. From kindergarten through fourth grade she attended the Zanetti Montessori school (Zanetti), a public school within SPS. Ann has been evaluated by both SPS and independent evaluators. She has functioned under a 504 plan since 2002 but was not found eligible for special education until a January 2005 team meeting midway through her fourth grade year. Ann’s individual education plan (IEP) covering 1/05 through 1/06 was accepted by Parents in February 2005 and provided Ann with ­­­­special education services through an inclusion program at Zanetti. On June 14, 2005 another team meeting took place and on July 1, 2005 a new IEP covering 9/05 to 9/06 was provided by SPS. This IEP proposed continuing Ann’s inclusion program at Zanetti but modified/expanded the delivery of services. On August 12, 2005 Parents rejected both the 9/05-9/06 IEP and the placement decision. On August 30, 2005 Parents’ attorney filed with the BSEA a request for hearing alleging the new SPS IEP was inappropriate and requesting Ann’s placement at White Oak School (White Oak) a private day special education placement.

Meanwhile, also on August 30, 2005, the Parent Information Center (PIC) of SPS sent to Parents Ann’s 2005-2006 school assignment letter assigning Ann to White Oak for her fifth grade year. On the first day of school Ann was publicly transported to White Oak, which continued at least until the pre-hearing conference on October 14, 2005. On September 19, 2005, upon receiving SPS’ response to Parents’ Hearing Request, Parents’ attorney contacted SPS’ attorney indicating that SPS had placed Ann at White Oak and that his client had told him Mary Birks of SPS had called her and told her that SPS had placed Ann at White Oak. SPS’ attorney spoke with her client and four affidavits were filed with the BSEA, variously attesting that SPS had not referred or placed Ann at White Oak; Mary Birks had never spoken with Parent and never said Ann was going to White Oak; describing the process by which SPS refers/places students at out of district placements; and enclosing a copy of a White Oak IEP for Ann, generated by White Oak and dated June 22, 2005. SPS affidavits acknowledged that the PIC letter dated August 30, 2005 listed Ann’s placement at White Oak and that this was an error. On September 20, 2005 the PIC sent a new School assignment letter assigning Ann to Zanetti for her fifth grade year. (See affidavits, Hill; Birks; Valles; Tate.)

PARENTS’ MOTION FOR DEFAULT JUDGMENT AND ORDER FOR STAY PUT

Parents contend that because SPS did not respond to Parents’ Hearing Request within the time frame designated on the Notice of Hearing (i.e. by September 9, 2005) SPS should be defaulted. Parents also contend that SPS should be estopped from asserting that White Oak is not Ann’s “then current placement” given that Ann had been placed there by SPS’ error. Finally, Parents allege detrimental reliance by Parents on SPS’ PIC letter assigning Ann to White Oak; that she has adjusted to the White Oak setting; that she has been there for an extended period of time; and that a change would be disruptive to her education.

SPS’ OPPOSITION TO PARENTS’ MOTION FOR DEFAULT JUDGMENT AND ORDER FOR STAY PUT

SPS contends that it did file a Response to Parent’s Hearing Request and, therefore, no default judgment can or should be entered; that SPS’ attorney requested a ten day extension from September 9 to September 19, 2005 to file SPS’ response which was forwarded to both Parents’ attorney and Parents’ advocate; that no objection was filed by Parents’ attorney to SPS’ extension; and that in prior cases between these two attorneys there has never been an objection to an extension of time of ten days or less. SPS contends that estoppel does not lie against a public entity such as SPS. SPS contends further that Parents have neither alleged nor proven the elements necessary for a finding that SPS should be estopped from asserting that White Oak is not Ann’s placement. SPS contends that any reliance on the faulty PIC letter was unreasonable under the circumstances. Finally, SPS contends that it would be against public policy to hold SPS to a White Oak placement when the team developed an IEP calling for Ann’s placement in a public school inclusion program.

RULING

Based upon all written materials filed by the parties at the BSEA including: Parents’ Hearing Request; SPS Response with attached IEPs; Parents’ Motion with accompanying written argument; SPS’ Opposition with accompanying written argument and affidavits; and the oral argument presented on December 8, 2005, I conclude that Parents’ Motion for Default Judgment and Order for Stay Put must be DENIED.

My analysis follows.

I.

There is nothing under IDEA 2004 which delineates any ramifications for failing to respond to Parents’ Hearing Request within the ten day framework. There are no default procedures under federal or state special education law, the Massachusetts Administrative Procedures Act or the formal rules of state adjudicatory practice and procedures (801 CMR 1.01). In this case, SPS’ attorney requested a ten day extension to file SPS’ response because she had just received the BSEA Notice of Hearing from SPS on September 6, 2005. A copy of this request was sent to Parents’ attorney and Parents’ advocate. No objection was filed to this request for extension. On September 19, 2005 SPS’ attorney filed SPS’ response. It would be an extreme and unjust remedy for SPS to effectively lose this case because its response arrived ten days late when that ten day extension was specifically requested by SPS and was not objected to by Parents. This is especially true given that there is no statutory or regulatory language in the governing statutes or regulations that would support Parents’ proposed remedy for this “default”. Finally, no prejudice to Parents resulted from the ten day extension from September 9 to September 19, 2005. School had already begun in both SPS and White Oak by September 6, 2005, prior to the September 9, 2005 original response date. Thus, Ann had already begun at/was being transported to White Oak when SPS’ response was originally due.

II.

An estoppel requires that one party has been induced by the conduct of another party to do something different from what otherwise would have been done which has resulted in harm to the first party; and that the other party knew or had reasonable cause to know that such consequences would follow. Further, the reliance of the party seeking the benefit of estoppel must have been reasonable. Calnan v. Planning Board of Lynn , 63 Mass. App. Ct. 384 (2005); Rourke v. Brookline Public Schools , 3 Mass L. Rptr 501 (1995); Harrington v. Fall River Housing Authority , 27 Mass. App. Ct. 301 (1989).

Parents have not met their burden to invoke the doctrine of estoppel. There is no proof that Parents acted differently from what they planned to do. A White Oak IEP was written by White Oak covering 9/05 through 11/05 and signed by White Oak headmaster David Drake on June 22, 2005 which stated, in pertinent part:

[Ann] is a friendly 9 year old young lady who will enter White Oak School in the Fall of 2005 as a 5 th grade student . Emphasis added.

I note that this White Oak IEP was drafted over two months prior to the beginning of the 2005-2006 school year. I further note that this White Oak IEP was written just eight days after the June 14, 2005 team meeting which drafted the proposed 9/05-9/06 SPS IEP which was rejected by Parents on August 12, 2005. Finally, I note that this June 22, 2006 White Oak IEP was written eight days before the proposed 9/05-9/06 SPS IEP had even been signed by SPS on July 1, 2005 and sent to Parents. Therefore, it is clear that Parents had certainly laid substantial ground work for at least a three month placement of Ann at White Oak beginning in September 2005 before even having seen the proposed SPS IEP. Further, this White Oak IEP for three months, with no input from SPS, indicates a private parental placement at White Oak, perhaps while Parents were litigating Ann’s placement with Springfield. (See affidavit, Birks; affidavit Hill; White Oaks IEP.)2

Parents may or may not have relied on SPS’ PIC letter assigning Ann to White Oak. However, if Parents did rely on the PIC letter, I find said reliance to be unreasonable based upon the circumstances of this case. On July 1, 2005 SPS had just proposed a new inclusion IEP at Zanetti for Ann who, at that point, had only been a special education student for five months. Parents rejected that IEP/placement on August 12, 2005 with no indication of what Parents were seeking as an alternative. It was not until Parents filed their hearing request at BSEA on August 30, 2005 that Parents requested White Oak or that SPS had any knowledge that Parents were requesting White Oak. (See affidavit, Valles.) The PIC assignment letter for White Oak was also dated August 30, 2005. I fail to understand how Parents could believe that SPS had consented to a placement of Ann at White Oak when SPS was contemporaneously learning for the first time what Parents wanted. Similarly, I fail to understand how Parents could believe that SPS had consented to a placement of Ann at White Oak after they had just promulgated a new, in-district, inclusion plan for Ann less then two months earlier.

Further, the affidavits of Sandra Hill, Special Education Director of SPS and Mary Birks, Special Education Supervisor and Out-of-District Supervisor for SPS detail the procedure by which SPS places students in out of district placements. These procedures include: 1) a team meeting which decides that the student requires an out of district placement; 2) writing an IEP for an out of district placement; 3) sending referrals to potential private placements; 4) the student being found appropriate at one or more private placements with existing openings; 5) acceptance of the student by the private placement, and (6) Parents’ acceptance of said placement. None of these procedures occurred in this case! There was no team meeting which recommended an out of district placement for Ann. There was no out of district IEP written by SPS for Ann. SPS generated no out of district referrals for Ann to White Oak or anywhere else. There were no communications between SPS and White Oak concerning Ann’s placement at White Oak. (See affidavits, Birks; Hill.) There was also no phone call from Ms. Birks to Parents telling Parents that SPS had placed Ann at White Oak (Affidavit, Birks; retraction by Parents’ attorney). In brief, there was no agreement between SPS and Parents and SPS and White Oak to place Ann at White Oak. Ironically, Parents have another child who is placed and funded by SPS at an out of district placement – specifically at White Oak. Therefore, Parents knew or ought to have known that none of the necessary procedures for SPS to place Ann at White Oak had taken place, especially since referrals to out of district placements require Parental consent.

Parents are represented by counsel experienced in special education law as well as an experienced special education advocate. Either: 1) Parents did not consult with counsel when they allowed Ann to be transported by SPS to White Oak after receiving the PIC assignment letter and they did not check with SPS regarding the correctness of the assignment letter; or 2) Parents did consult with counsel and neither Parents nor counsel checked with SPS regarding the correctness of the assignment letter. Either of the above scenarios is patently unreasonable given the circumstances of this case as delineated above. A phone call from either Parents or Parents’ counsel to SPS would have clarified this situation and negated any potential disruptiveness to Ann’s educational placement. Any detrimental reliance was a reliance that was not reasonable and could have been easily corrected.3

ORDER

Parents’ Motion for Default Judgment and Order for Stay Put is DENIED .

By the Hearing Officer

Dated: __________________ ___________________


1

Ann is a pseudonym chosen by the Hearing Officer to protect the privacy of the Student in publicly available documents.


2

I note that no affidavits were filed by Parents or on behalf of Parents even though the opportunity to do so was specifically extended to them by the Hearing Officer.


3

Again no affidavits were filed by or on behalf of Parents despite ample opportunities to do so.


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