COMMONWEALTH OF MASSACHUSETTS
BUREAU OF SPECIAL EDUCATION APPEALS
In Re: Braintree Public Schools BSEA # 08-2415
DECISION
This decision is issued pursuant to the Individuals with Disabilities Education Act (20 USC 1400 et seq .), Section 504 of the Rehabilitation Act of 1973 (29 USC 794), the state special education law (MGL c. 71B), the state Administrative Procedure Act (MGL c. 30A), and the regulations promulgated under these statutes.
A hearing was held on February 27, 2008 in Malden, MA before William Crane, Hearing Officer. Those present for all or part of the proceedings or who testified by telephone were:
Student’s Mother
John Harkness Psychologist in Private Practice
Christina Seremetis Lindamood-Bell Center Director
Barbara Hurley Teacher, Braintree Public Schools
Pamela Ten Eyck Behaviorist, Braintree Public Schools
William Fleming Psychologist, Braintree Public Schools
Meridith Duffy Executive Director, Braintree After School Enrichment Program
Elizabeth Shanahan After School Program Administrator, South Shore YMCA
Tim MacDonald Principal, Hollis Elementary School, Braintree Public Schools
Robert Belmont Director of Special Services, Braintree Public Schools
Henry Bock Attorney for Mother and Student
Elizabeth Kittredge Legal Intern with Mr. Bock
Jennifer Schanes Legal Intern with Mr. Bock
Alicia St. Florian Attorney for Braintree Public Schools
Brenda Ginisi Court Reporter
The official record of the hearing consists of documents submitted by the Parents and marked as exhibits P-1 through P- 7; documents submitted by the Braintree Public Schools (Braintree) and marked as exhibits S-1 through S-22; and one day of recorded oral testimony and argument. As agreed by the parties, oral closing arguments were made at the end of the Hearing day on February 27, 2008, and the record closed on that date.
INTRODUCTION AND POSITIONS OF THE PARTIES
On February 11, 2008, Braintree filed with the Bureau of Special Education Appeals (BSEA) a Hearing Request for the purpose of obtaining a BSEA Order placing Student at an interim alternative educational setting (IAES) for up to 45 school days. Braintree identified the proposed setting as the South Shore Educational Collaborative (South Shore Collaborative). At Braintree’s request, the BSEA gave its Hearing Request expedited status.
Braintree takes the position that Student’s behavior poses a danger to himself and others if he were to continue in his current placement in a 1 st grade regular education classroom at the Hollis Elementary School. Braintree also believes that placement at the South Shore Collaborative will serve an important and necessary purpose of evaluating Student for the purpose of determining how to address appropriately his behavior difficulties.
Student’s mother (Parent) responded to the Hearing Request by opposing the proposed placement at the South Shore Collaborative and raising several counterclaims.1 Parent believes that much of what Braintree staff has said or written regarding her son’s behavior may not be an accurate or a complete reporting of what is happening at school. At the same time, Parent agrees with Braintree that her son’s situation at the Hollis Elementary School has deteriorated to the point that he should not continue in his 1 st grade regular education classroom.
At the time of the Hearing, Student was not attending school. Instead, at Parent’s request, Student was enrolled at a Lindamood-Bell program where he was receiving 1:1 instruction for 6 hours each day. Braintree agreed to fund this program through March 7, 2008, by which date Braintree anticipated receiving a Decision from the BSEA in the instant dispute. An independent neuropsychological evaluation has been approved for funding by Braintree and is scheduled for April 15, 2008.
Parent takes the position that, at least for the immediate future, her son should continue to attend the Lindamood-Bell program, rather than either be placed at the South Shore Collaborative or be returned to his regular education placement. Parent notes that Student’s so-far successful placement with Lindamood-Bell removes any urgency for placement in a more restrictive setting, such as the South Shore Collaborative.
Parent takes the position that many, if not all, of Student’s difficulties at school could have been avoided had Braintree staff interacted more appropriately with her son. Parent also believes that there may be significant learning disabilities that are impacting her son’s behavior at school and that until the independent neuropsychological evaluation is completed, it would be premature to place her son at a substantially separate program for children with behavior or emotional deficits, such as the South Shore Collaborative. Parent is particularly concerned that such a setting has a high likelihood of becoming a long-term, inappropriate placement for her son. In the event that the Lindamood-Bell program ends prior to completion of the neuropsychological evaluation, Parent asks that her son be considered for a substantially-separate program designed for children with learning disabilities rather than the South Shore Collaborative.
For the reasons explained below, I agree with Braintree that Student should be placed immediately at the South Shore Collaborative for up to 45 school days.
ISSUES
The issues to be decided in this case are the following:
1. Should Student be removed from his current educational placement and placed at an interim alternative educational setting for no more than forty-five school days?
2. If so, should the interim alternative educational setting be the South Shore Collaborative?
FACTS
Student Profile and IEP .
Student is a six-year-old who lives with his mother in Braintree, Massachusetts. Student is energetic, he is bright, he loves to learn, and he is able to do 1 st grade academic work. During the current school year, Student has attended a regular education 1 st grade classroom at Braintree’s Hollis Elementary School. Testimony of Parent, Hurley, Fleming; exhibits P-6, S-7, S-9.
Student’s emotional resources are not well-developed, and the levels of stress routinely experienced at school far exceed his emotional resources for coping with these stressors. As a result, he likely feels chronically overwhelmed at school. When unable to manage stress appropriately, he becomes impulsive, uses poor judgment, and becomes confused and acts inappropriately. Student’s behavior includes aggressiveness, oppositional behavior, and conduct problems. At home, Student is very active and needs to be engaged, but he has not demonstrated any of the inappropriate behaviors reported by Braintree staff. Student has not been diagnosed with any major illness. Testimony of Parent, Harkness, Fleming, Hurley; exhibits P-1, P-3, S-6.
The only special education service on Student’s current individualized education program (IEP) is described as a “paraeducator small group” to be provided by a “paraeducator” for 345 minutes each day. Essentially, this reflects that Student is provided a 1:1 aide during the school day. The two goals on Student’s IEP pertain to (1) self-control so that he can access the general education curriculum and (2) safe participation in school activities. Exhibit S-7.
Educational History .
Student transferred to the Braintree Public Schools in May 2007 when his Parent moved from Milton to Braintree. During May and June 2007, Student attended kindergarten in the Braintree Public Schools as a regular education student. Braintree staff noticed, at that time, that Student appeared to have behavior difficulties that needed to be addressed within the classroom and would likely need to be addressed during the following school year in 1 st grade.
In light of this concern regarding Student’s behavior, Braintree selected Ms. Hurley as the person best suited to be Student’s 1 st grade teacher. Ms. Hurley has 25 years experience as a 1 st grade teacher at Braintree, and her classroom is highly structured. Testimony of MacDonald, Belmont.
From the beginning of 1 st grade in September 2007, Ms. Hurley found that Student presented behavioral and attentional challenges. He immediately began demonstrating inappropriate attention-seeking behaviors in the classroom, requiring significant individual attention from Ms. Hurley. Soon thereafter, Student began exhibiting aggressive behaviors that included pushing, tripping, and punching other children, as well as knocking over children by “shouldering” them. Occasionally, he would also pick up a child and throw the child to the ground, or run full-speed into other children knocking them to the ground, or push his desk on top of another child. On other occasions, he threatened children with scissors or a pencil. He threw objects within the classroom, including chairs. On several occasions, he ran out of the room and hid in his locker. Once, he walked on the desks in the classroom. Testimony of Hurley; exhibit S-17.
By September 20, 2007, the school psychologist (Dr. Fleming) had become involved. During lunch, he personally monitored Student. During recess, either Dr. Fleming or occasionally another Braintree staff person monitored Student. This continued until Student was assigned a 1:1 aide for this purpose. In September and October 2007, Dr. Fleming conducted a psychological evaluation of Student. During these months, the Braintree behaviorist (Ms. Ten Eyck) also conducted a functional behavioral assessment, seeking to learn what was causing Student’s inappropriate behavior. On October 25, 2007, a special education team met and determined that Student was eligible for special education services. Pursuant to a partially accepted IEP, Student began receiving the services of a 1:1 aide, starting October 26, 2007, to address his inappropriate behavior. Testimony of Fleming, Ten Eyck, Hurley; exhibits P-4, P-6, S-9, S-13, S-14, S-16.
One incident was of particular concern to Braintree regarding Student’s safety. On October 5, 2007, Student was asked to meet with Braintree staff in an office on the second floor. Student was told that he was being suspended, and he began to cry. He then calmly walked over to a window, climbed up into the window, and had his head and shoulders out the window apparently attempting to jump out the window when he was grabbed and pulled back by Ms. Ten Eyck. Student said he wanted to die. “Just kill me” he told Ms. Ten Eyck. Mother then picked up her son at school and had him evaluated at Children’s Hospital in Boston. Testimony of Ten Eyck, Fleming.
Notwithstanding the addition of a 1:1 aide, Student’s behavior difficulties, which occurred on nearly a daily basis, continued within the classroom, during recess, and at other times during the school day. Ms. Hurley sought to reduce his behavior outbursts by separating Student from others at times, by personally maintaining close observation of Student, and by her or the 1:1 aide being close to Student, but Student’s dangerous behaviors continued. Ms. Hurley counted 34 days during the school year when she had significant concerns regarding Student’s safety and 54 days during the school year when Student exhibited dangerous behavior towards others. Approximately 20 times, Ms. Hurley needed to physically hold Student in order to avoid someone being hurt. Ms. Hurley and Dr. Fleming testified that Student occasionally appeared to demonstrate a high degree of anger or “rage,” which is likely related to his inappropriate behavior. Some children became extremely frightened of Student. Many of Student’s behavior incidents are documented by contemporaneous notes taken by Ms. Hurley and other Braintree staff. Testimony of Hurley, Fleming, Ten Eyck, MacDonald; exhibits S-1, S-3, S-4, S-8, S-17.
Over time, Ms. Hurley learned to predict occasionally, but not consistently, Student’s inappropriate behavior. Similarly, Ms. Ten Eyck was unable to determine the causes of Student’s inappropriate behavior notwithstanding her functional behavioral assessment, and Ms. Ten Eyck was not able to develop an effective behavior plan. Dr. Fleming also evaluated and observed Student but was not able to understand the causes of his behavior. Dr. Fleming observed that, at times, Student was violent towards others without any apparent precipitating event. Testimony of Hurley, Ten Eyck, Fleming.
On February 7, 2008, Braintree held a manifestation meeting and determined that Student’s behaviors were related to his disabilities. The Braintree members of the Team recommended that Student be placed at the South Shore Collaborative for an extended evaluation. Parent rejected this proposal. Exhibits P-5, S-5, S-6.
On February 8, 2008 an incident occurred that involved Student’s throwing his lunch tray, followed by his physical restraint for approximately 7 minutes. As a result of his behavior, Student was suspended from February 11, 2008 through February 15, 2008. Parent chose not to return Student to school following this suspension. Testimony of MacDonald, Ten Eyck; exhibit S-1.
Student has now been placed temporarily, at Parent’s request, at a Lindamood-Bell program where Student has been receiving six hours of 1:1 sensory-cognitive instruction in the areas of literacy and math skills. Lindamood-Bell recently evaluated Student, recommending that he continue in this program for twelve weeks. Testimony of Parent, Seremetis; exhibit P-7.
South Shore Collaborative .
The South Shore Collaborative provides students with a therapeutic, small group, day program that is able to address a student’s behavior difficulties. The South Shore Collaborative would be able to provide Student with his academic content materials for 1 st grade and, at the same time, provide a psychiatric evaluation for the purpose of seeking to determine the cause of Student’s behavior difficulties. The Collaborative has an interagency agreement with South Shore Mental Health Center for purposes of utilizing the Mental Health Center’s resources. Braintree is a member of the South Shore Collaborative and has placed 10 students there over the past 2 years. Testimony of Belmont.
DISCUSSION
Student is an individual with a disability, falling within the purview of the Individuals with Disabilities Education Act (IDEA)2 and the state special education statute.3 The IDEA was enacted “to ensure that all children with disabilities have available to them a free appropriate public education [FAPE] that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living.”4 The Supreme Court has described FAPE as “personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction.”5 Neither Student’s eligibility status nor his entitlement to FAPE is in dispute.
In the instant dispute, Braintree has the burden of persuasion that Student should be removed from his current 1 st grade placement at Hollis Elementary School and that he should be placed at the South Shore Educational Collaborative.6
Pursuant to the IDEA, a BSEA Hearing Officer has the authority to remove a student to an interim alternative educational setting (IAES) as follows:
(1) A hearing officer under §300.511 hears, and makes a determination regarding an appeal under paragraph (a) of this section.
(2) In making the determination under paragraph (b)(1) of this section, the hearing officer may–
(i) Return the child with a disability to the placement from which the child was removed if the hearing officer determines that the removal was a violation of §300.530 or that the child’s behavior was a manifestation of the child’s disability; or
(ii) Order a change of placement of the child with a disability to an appropriate interim alternative educational setting [IAES] for not more than 45 school days if the hearing officer determines that maintaining the current placement of the child is substantially likely to result in injury to the child or to others.7
Under this standard, I first determine whether maintaining Student in his 1 st grade placement at the Hollis Elementary School would “substantially likely . . . result in injury to [Student] or to others,” and therefore he should be removed to an IAES.
Through Ms. Hurley (Student’s 1 st grade teacher), Ms. Ten Eyck (a behaviorist), and Dr. Fleming (school psychologist), Braintree provided credible, unrebutted, first-hand testimony of Student’s behavior within the classroom and in other parts of the school building. The behavior incidents which these witnesses observed and which are reflected in contemporaneous school records demonstrate that, on many occasions throughout the current school year, Student has been dangerous to others, particularly to other children, and has been dangerous to himself. Notwithstanding the addition of a 1:1 aide in October 2007, a functional behavioral assessment, psychological evaluation, and the consultation of Dr. Fleming and Ms. Ten Eck, Student’s behavior difficulties have continued without Braintree staff’s being able to anticipate their occurrence, understand their causes, or implement effective strategies for significantly reducing their severity or frequency. See the Educational History subsection of the Facts section of this Decision, above.
Dr. Fleming formally evaluated Student and, in addition, has spent a significant number of hours observing Student within the school setting and consulting with other Braintree staff (including Ms. Hurley) regarding Student’s behaviors. Dr. Fleming, who has a PhD in psychology and who is both a school psychologist and a licensed clinical psychologist, has significant experience evaluating and working with children who are diagnosed with serious behavioral and emotional deficits who have been placed in residential treatment facilities. Dr. Fleming provided persuasive, expert testimony that when Student is under significant stress, he can very quickly become very sad, and at these times, Student has the potential to harm himself in a significant way. He further provided persuasive, expert testimony that Student continues to pose a significant risk of harm to others on a daily basis. Testimony of Fleming; exhibits S-13, S-14.
Ms. Hurley, Ms. Ten Eyck, and Ms. Hurley testified persuasively that there is nothing further that can be done by Braintree to make it safe for Student to return to his 1 st grade classroom.
In her testimony, Parent made it clear that she does not credit the accuracy or completeness of the oral and written reports of Braintree staff regarding her son’s conduct at school. Parent took the position that her son’s difficulties at school are likely precipitated by inappropriate and perhaps even hostile responses by Braintree staff and by other children at school. Also, Parent believes that Student likely has significant learning difficulties that have caused Student frustration, leading to behavior difficulties. I do not find these arguments persuasive for the following reasons.
Student has never been diagnosed as having a learning disability, nor was there testimony or any report submitted into evidence which concludes that such a disability exists. The reports relied upon by Parent – that is, the Lindamood-Bell evaluation and Braintree’s psychological evaluation – can be read to mean only that Student has certain relative weaknesses and strengths relative to learning (for example, difficulty processing oral directions). To be sure, the independent neuropsychological evaluation might reveal one or more learning disabilities, but at present there is no basis to conclude that he has learning deficits that require special education or related services in order for Student to access the curriculum and make effective progress in the classroom. To conclude from this evidence that Student has a learning disability would only be conjecture. Exhibits S-13, S-15, P-7.
Credible testimony and reports from staff at Student’s private after-school program and his private before-school program were persuasive that in those settings, Student demonstrated behavioral difficulties similar to those reported at the Braintree elementary school. For example, the Executive Director of the after school program testified that Student daily demonstrated unprovoked, aggressive behavior, and occasionally he would run out of the room and hide. The Administrator for Student’s before-school program testified that there were 6 or 7 documented incidents of Student’s being physically aggressive. Student’s behaviors caused him to be terminated from both the after-school and before-school programs during the current school year. Parent did not seek to rebut the testimony and reports of staff from Student’s after-school and before-school programs regarding Student’s conduct and dismissal from these programs. Testimony of Duffy, Shanahan; exhibits S-21, S-22.
The evidence of after-school and before-school difficulties is not directly relevant to Student’s safety within his current 1 st grade placement. However, the evidence is nevertheless instructive in that it reflects Student’s difficulty generally in group settings with other children. Equally important, this evidence rebuts Parent’s arguments that Student’s behavioral difficulties are caused by the manner in which Braintree staff have interacted with Student and by his unmet learning deficits within a regular education 1 st grade setting.
Parent’s only expert witness was Dr. Harkness. Dr. Harkness has been seeing Student in therapy and completed an evaluation of Student. Dr. Harkness, who has a doctorate in psychology, is a clinical psychologist in private practice. He was retained by Parent to address Student’s school-related behavior difficulties. In his evaluation report dated February 21, 2008, Dr. Harkness recommended that Student be educated within a regular education classroom that is “structured, predictable, and nuturant.” Dr. Harkness further explained: “[Student’s] teacher will need to be aware that he can be easily overwhelmed by novel or overly complex situations, but that with guidance and support power struggles, impulsive acting out, and oppositional behaviors can be avoided.” Testimony of Harkness; exhibits P-2, P-3.
In preparing his evaluation report and reaching the above conclusions, Dr. Harkness reviewed no school records, evaluations, or other documents; and he spoke with no Braintree staff or with other educators or professionals who have worked with Student. Dr. Harkness’s information regarding Student’s behavior difficulties was provided only by Parent and Student. In reaching his conclusions, Dr. Harkness had little, if any, knowledge of what Braintree had been doing for the past four or five months to address Student’s behavior, nor did he have a complete understanding of the frequency and intensity of Student’s behaviors at school. He also stated, incorrectly, in his report that Student has not been having behavioral problems in his after-school program. I find that Dr. Harkness simply did not have sufficient factual information to render a credible, expert opinion regarding the appropriateness of Student’s continuing to be educated within a regular education classroom at the present time. Testimony of Harkness; exhibit P-3.
For these reasons, I find that continuing Student in his 1 st grade classroom in Braintree’s Hollis Elementary School is substantially likely to result in injury to Student or to others. Accordingly, Student should be placed in an appropriate interim alternative educational setting (IAES) for not more than 45 school days pursuant to the above-quoted federal regulations.
The remaining question is whether the South Shore Collaborative is an appropriate IAES for Student.
Braintree has conducted a functional behavioral evaluation for purposes of determining the causes of Student’s behavior. In addition, Braintree has conducted a psychological evaluation by its school psychologist who has significant experience and expertise with children who have serious emotional disabilities and behavior difficulties. Both of these staff have spent significant amount of time observing Student and consulting with Ms. Hurley, the 1 st grade teacher. In addition, Ms. Hurley is a highly experienced teacher who has spent a significant amount of time working directly with Student in an effort to reduce his physical aggression. Notwithstanding their efforts, Braintree has been unable to determine the causes of Student’s behavior difficulties. His inappropriate behavior has continued to be unpredictable, sometimes occurring without any apparent reason. See Educational History subsection of the Facts section of this Decision, above.
An essential part of an appropriate IAES placement is the opportunity to further evaluate Student and, in particular, to seek to understand the causes of his behavior difficulties. There is agreement among Braintree witnesses (Dr. Fleming and Ms. Ten Eyck) and Student’s private therapist (Dr. Harkness) that, for these purposes, there are advantages to observing and evaluating Student over a period of time, as compared to taking a “snap shot” view of Student and his behavior deficits.8
The South Shore Collaborative provides a structured, therapeutic educational environment in which Student’s behavior can be monitored as well as assessed over the course of the 45-day placement. Through its agreement with the South Shore Mental Health Center, the Collaborative has the capacity to provide a needed psychiatric evaluation for these purposes. It is reasonable to expect that through this evaluative placement, more appropriate interventions and strategies will be proposed for working effectively with Student. Testimony of Belmont. See also the South Shore Collaborative subsection of the Facts section of this Decision, above.
Dr. Fleming, who is familiar with the South Shore Collaborative, testified that, in his opinion, the South Shore Collaborative would be an appropriate setting for Student’s 45-day IAES placement.
Parent has two principal objections to a 45-day placement at the South Shore Collaborative. First, Parent argues that it is unnecessarily restrictive. Parent points out, correctly, that Student is currently placed at the Lindamood-Bell program where there have been no reported behavior difficulties. Parent takes the position that Student may continue in this setting while further evaluations occur, including the independent neuropsychological evaluation scheduled for April 15, 2008.
I am not persuaded that the Lindamood-Bell program is an appropriate placement for Student. The instruction, which is provided entirely on a 1:1 basis, is limited to addressing certain literacy and math skills. This cannot be considered the equivalent of providing a 1 st grade curriculum. Also, Lindamood Bell provides no opportunity to interact with other children socially or academically. Perhaps most importantly, the program includes no opportunity for assessment or evaluation of Student’s behavior issues as it is purely an academic program. Finally, Lindamood-Bell has only limited resources and expertise to deal with behavior difficulties should they arise. Parent is correct in that Lindamood-Bell may be providing a respite from Student’s difficulties in elementary school, it may be providing useful academic instruction in certain specific areas, and, in some respects, it may be considered less restrictive than the South Shore Collaborative. However, the Lindamood-Bell program is not appropriate as a placement for purposes of providing Student with a full academic program which can, at the same time, monitor, address, and assess his behavior difficulties. Testimony of Seremetis, Belmont.
In her testimony, Parent also expressed significant concern that a placement at the South Shore Collaborative would likely lead to a long term placement at this setting or similar placement. Dr. Harkness also appeared to have this concern. However, as correctly noted by Braintree in its closing argument, an IAES placement at the South Shore Collaborative is being ordered for no more than 45 school days. Without further order from the BSEA or agreement by Parent, Braintree may not continue Student’s placement at the Collaborative (or similar setting) beyond the 45 school days.9
For these reasons, I find that the South Shore Collaborative is an appropriate IAES for Student.
ORDER
Maintaining Student in his current 1 st grade regular education placement is substantially likely to result in injury to Student or to others. Student’s placement, therefore, should be changed immediately to an appropriate interim alternative educational setting (IAES) for not more than 45 school days.
The South Shore Collaborative is an appropriate IAES for this purpose.
Accordingly, for 45 school days, Student’s placement is hereby changed to the South Shore Collaborative.
By the Hearing Officer,
William Crane
Dated: March 6, 2008
COMMONWEALTH OF MASSACHUSETTS
BUREAU OF SPECIAL EDUCATION APPEALS
THE BUREAU’S DECISION, INCLUDING RIGHTS OF APPEAL
Effect of the Decision
20 U.S.C. s. 1415(i)(1)(B) requires that a decision of the Bureau of Special Education Appeals be final and subject to no further agency review. Accordingly, the Bureau cannot permit motions to reconsider or to re-open a Bureau decision once it is issued. Bureau decisions are final decisions subject only to judicial review.
Except as set forth below, the final decision of the Bureau must be implemented immediately. Pursuant to M.G.L. c. 30A, s. 14(3), appeal of the decision does not operate as a stay. Rather, a party seeking to stay the decision of the Bureau must obtain such stay from the court having jurisdiction over the party’s appeal.
Under the provisions of 20 U.S.C. s. 1415(j), “unless the State or local education agency and the parents otherwise agree, the child shall remain in the then-current educational placement,” during the pendency of any judicial appeal of the Bureau decision, unless the child is seeking initial admission to a public school, in which case “with the consent of the parents, the child shall be placed in the public school program”. Therefore, where the Bureau has ordered the public school to place the child in a new placement, and the parents or guardian agree with that order, the public school shall immediately implement the placement ordered by the Bureau. School Committee of Burlington, v. Massachusetts Department of Education , 471 U.S. 359 (1985). Otherwise, a party seeking to change the child’s placement during the pendency of judicial proceedings must seek a preliminary injunction ordering such a change in placement from the court having jurisdiction over the appeal. Honig v. Doe , 484 U.S. 305 (1988); Doe v. Brookline , 722 F.2d 910 (1st Cir. 1983).
Compliance
A party contending that a Bureau of Special Education Appeals decision is not being implemented may file a motion with the Bureau contending that the decision is not being implemented and setting out the areas of non-compliance. The Hearing Officer may convene a hearing at which the scope of the inquiry shall be limited to the facts on the issue of compliance, facts of such a nature as to excuse performance, and facts bearing on a remedy. Upon a finding of non-compliance, the Hearing Officer may fashion appropriate relief, including referral of the matter to the Legal Office of the Department of Education or other office for appropriate enforcement action. 603 CMR 28.08(6)(b).
Rights of Appeal
Any party aggrieved by a decision of the Bureau of Special Education Appeals may file a complaint in the state court of competent jurisdiction or in the District Court of the United States for Massachusetts, for review of the Bureau decision. 20 U.S.C. s. 1415(i)(2).
An appeal of a Bureau decision to state superior court or to federal district court must be filed within ninety (90) days from the date of the decision. 20 U.S.C. s. 1415(i)(2)(B).
Confidentiality
In order to preserve the confidentiality of the student involved in these proceedings, when an appeal is taken to superior court or to federal district court, the parties are strongly urged to file the complaint without identifying the true name of the parents or the child, and to move that all exhibits, including the transcript of the hearing before the Bureau of Special Education Appeals, be impounded by the court. See Webster Grove School District v. Pulitzer Publishing Company , 898 F.2d 1371 (8th Cir. 1990). If the appealing party does not seek to impound the documents, the Bureau of Special Education Appeals, through the Attorney General’s Office, may move to impound the documents.
Record of the Hearing
The Bureau of Special Education Appeals will provide an electronic verbatim record of the hearing to any party, free of charge, upon receipt of a written request. Pursuant to federal law, upon receipt of a written request from any party, the Bureau of Special Education Appeals will arrange for and provide a certified written transcription of the entire proceedings by a certified court reporter, free of charge.
1
The instant Decision addresses only Braintree’s claims and does not consider Parent’s counterclaims because Parent’s counterclaims need not be addressed on an expedited status. The parties have agreed to a conference call on March 12, 2008 to discuss Parent’s counterclaims informally and determine what further BSEA proceedings (including Hearing dates) should be scheduled.
2
20 USC 1400 et seq .
3
MGL c. 71B.
4
20 USC 1400(d)(1)(A). See also 20 USC 1412(a)(1)(A); MGL c. 71B, ss. 2, 3.
5
Bd. of Educ. of the Hendrick Hudson Central Sch. Dist. v. Rowley, 458 U.S. 176, 203 (1982).
6
Schaffer v. Weast , 546 U.S. 49, 62 (2005) (burden of persuasion in an administrative hearing challenging an IEP is placed upon the party seeking relief; a party who has the burden of persuasion “ loses if the evidence is closely balanced” ).
7
34 CFR § 300.532(b). See also 20 USC § 1415(k)(3) providing similar language.
8
Dr. Harkness testified that there would be value in assessing Student over a period of time. Dr. Harkness stated that he was “very amenable” to Student’s being placed in a 45-day setting for this purpose. He added that there would be risks as well. To minimize these risks, he testified that Student should be placed within the least restrictive environment upon the completion of the 45-day placement. This testimony appeared to be a modification of Dr. Harkness’s earlier opinion, as expressed in a letter “To Whom It May Concern” dated January 11, 2008. Exhibit P-2.
9
This is because Student’s “stay put” placement is the placement last agreed-upon by the parties, rather than the time-limited IAES placement that is being ordered by the BSEA at the South Shore Collaborative. See 20 USC § 1415 (j); 34 CFR §300.518.