Cambridge Public Schools – BSEA # 09-0291

Cambridge Public Schools – BSEA # 09-0291

COMMONWEALTH OF MASSACHUSETTS

BUREAU OF SPECIAL EDUCATION APPEALS

In Re: Cambridge Public Schools

BSEA # 09-0291

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 October 6, 2008 in Malden, MA before William Crane, Hearing Officer. Those present for all or part of the proceedings were:

Student’s Parent

Scott McLeod Executive Director, YouthCare

Karyn Grace Inclusion Specialist, Cambridge Public Schools

Linda Kelly School Psychologist, Cambridge Public Schools

Charles Lower Lead Teacher for Summer Program, Cambridge Public Schools

Jean Spera Assistant Director of Special Education, Cambridge Public Schools

Sheila Deppner Advocate for Parent and Student

Maureen MacFarlane Attorney for Cambridge Public Schools

The official record of the hearing consists of documents submitted by Parent and marked as exhibits P-1 through P-18 and P-20; documents submitted by the Cambridge Public Schools (Cambridge) and marked as exhibits S-1 through S-10; 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 on October 6, 2008, and the record closed on that date.

A. ISSUE

The issue to be decided in this case is whether Parent should be reimbursed for her out-of-pocket expenses attributable to her private placement of Student at the YouthCare program during the summer of 2008.

B. POSITIONS OF THE PARTIES

Parent takes the position that the summer program proposed by Cambridge was not appropriate for Student and that the YouthCare program (in which she enrolled Student for the summer of 2008) was appropriate. She further asserts that a mediation agreement between the parties required Cambridge to consider providing the YouthCare summer program to Student, and Cambridge failed to do so. Parent also argues that she was given insufficient opportunity to learn about Cambridge’s proposed summer program. For these reasons, Parent believes that she is entitled to be reimbursed for her expenses associated with Student’s placement at YouthCare.

Cambridge takes the position that the IEP Team considered and rejected YouthCare as a summer placement because Cambridge’s own program provided components similar to those offered by YouthCare and because Cambridge’s program met Student’s educational needs regarding summer services. Cambridge also asserts that Parent’s written notice of private placement and request for reimbursement was made subsequent to the beginning of the YouthCare program and therefore was legally insufficient because it did not provide ten days prior notice to Cambridge. In sum, Cambridge believes that its own summer program was appropriate and that no reimbursement of expenses (from Parent’s placement of Student at YouthCare) is warranted.

C. FACTS

1. Student Profile and IEP .

Student, who is eleven years old, lives with his aunt who is his legal guardian (referred to as “Parent” in this Decision) in Cambridge, MA. Student is bright and inquisitive, with average or above average academic skills. Exhibits P-7, P-15, S-7.

Student has been diagnosed with Pervasive Developmental Disorder, a disability that places Student on the autism spectrum. Student’s disability impacts his educational progress in all areas. Specifically, Student has significant weaknesses in navigating social interactions and has difficulties in language processing, both of which negatively effect his ability to make adequate academic progress without support of special education staff. The Cambridge inclusion specialist (Grace) testified that appropriately addressing Student’s social pragmatic skill deficits is critical for him to be able to access the curriculum. Testimony of Grace; exhibits P-5, P-8, P-10, P-11, P-13, P-14, P-15, S-5, S-7.

Student participates in a full inclusion 5 th grade program at Cambridge’s Kennedy-Longfellow School. Student’s current individualized education program (IEP) calls for direct special education and related services of occupational therapy, speech-language services, and academic support services to be provided by a special educator. Student’s current IEP also calls for extended year services, to be provided within Cambridge’s summer program. The IEP explains that summer services are recommended to prevent substantial regression of Student’s social and language skills. Exhibits P-15, S-7 (pages 13, 18), P-10.

Parent testified that although Student is doing well academically, he continues to have significant deficits regarding social and pragmatic language skills. For example, Parent has observed that Student will not look at someone in public and if someone calls him, he will “stiffen up.” He will never “make the first move” towards socializing with others, except with respect to younger children. At home, Student sometimes bites, kicks, and hits Parent and other family members. Parent testified that during the summer when there is less structure, he typically demonstrates worse behavior than at other times of the year. Although Student has made progress at home, he continues to be prone to emotional outbursts that include yelling or threatening family members. On the other hand, when Student is occupied with an activity, he does not exhibit behavior difficulties. Testimony of Parent; exhibits S-5, P-7.

2. Educational History .

On March 18, 2008, the parties entered into a mediated agreement in which Cambridge agreed to “consider” the YouthCare summer program for Student, as well as Cambridge’s own summer program. The relevant part of the agreement reads as follows:
(4) Cambridge will consider the Youth care [sic] program in Charlestown and Cambridge programs for the summer/extended year program.

Exhibits P-3, S-3.

Student’s inclusion specialist at Cambridge provided Parent with a brochure and application for the YouthCare summer program. She did so because she understood that Cambridge was to consider this program for Student. Testimony of Grace, Parent.

Parent completed the YouthCare application and assumed that if accepted, Student’s placement would be funded by Cambridge. At the end of May 2008, Parent and Student had an interview at YouthCare, and Student was accepted into the program the next day. Parent then wrote an e-mail to Student’s teacher (Anderson) and school psychologist (Kelly), advising them of Student’s placement. Student’s teacher responded by e-mail dated June 4, 2008, stating that this was “excellent news” and that “he’ll really benefit from that.” The school psychologist also responded on June 4, 2008, noting that although the placement “sounds great,” the IEP Team still needed to consider whether to fund the YouthCare program and that this would be discussed at the Team meeting on June 12, 2008. Testimony of Parent; exhibits S-4, P-20.

On June 12, 2008, Student’s program for the summer of 2008 was discussed for the first time by the IEP Team. Although opinions differ as to what precisely was discussed, it seems likely that Cambridge staff indicated during the meeting that they had considered Student’s educational needs and how they should be met during the summer, and that they recommended that Student be placed in Cambridge’s own summer program at the Morse School. Parent’s advocate asked the IEP Team to consider further the YouthCare summer program as an alternative to the Morse School program. At least two Team members (Grace, Kelly) had previously obtained and reviewed written material from YouthCare, they believed that Cambridge’s own summer program offered components similar to those provided at YouthCare, and they were prepared to discuss YouthCare and their recommendations at this Team meeting. However, the Team meeting’s discussion of YouthCare was cut short by the Team chairperson (Kelly) who ended the meeting when it appeared to her that the meeting was becoming “volatile” as a result of Parent’s advocate. Testimony of Parent, Kelly, Grace; exhibit S-6 (page 2, para. # 1).

During the June 12, 2008 Team meeting, Cambridge staff provided Parent with minimal information regarding the Morse School summer program. Parent was not invited to visit the summer program at a later time or talk to summer program staff nor was Parent provided any written information regarding the program. Parent did not request further information regarding the program or seek to observe the program. The abbreviated discussion of the Morse School program was likely the result of Parent’s making it clear to the other Team members that this summer program was unacceptable to her. Testimony of Parent, Kelly.

Soon after the conclusion of the June 12, 2008 IEP Team meeting, Parent’s advocate again inquired with Cambridge whether it would be willing to fund the YouthCare program. Cambridge then prepared a proposed IEP that offered Student the summer program at the Morse School. Testimony of Parent; exhibits S-7, P-15.

Parent sent Cambridge a letter, dated June 27, 2008 and received by Cambridge on July 1, 2008, advising Cambridge that in the event it did not choose to fund YouthCare, Parent would seek a BSEA order requiring Cambridge to reimburse her for the cost of this placement. By letter of July 2, 2008, the Cambridge Director of Special Education (Ramos) responded to Parent, stating that YouthCare was not recommended by the IEP Team and would therefore not be funded by Cambridge. Testimony of Parent; exhibits S-9, S-10.

On June 25, 2008, Student began attending YouthCare. Student attended the entire seven-week program.

3. Cambridge’s Proposed Summer Program .

During the summer of 2008, Cambridge offered a five-week program at the Morse School. The program ran from 8:30 a.m. to 12:30 p.m. each day. The curriculum was developed on the basis of the IEP objectives of the participating students. The program sought to address the needs of students with academic, social, behavioral, and emotional needs. Testimony of Lower, Spera.

If Student had participated in the Morse School summer program for the summer of 2008, he would have been assigned to classroom # 4. Classroom # 4 includes children from age 10 to 14 years old. During the summer of 2008, this classroom had 12 students (Student would have been the 13 th child in the room), a special education teacher, a substitute teacher, a paraprofessional, and an intern. Testimony of Lower.

The only criteria for participation in a particular classroom at the Morse School summer program is the age of the student and the student having been chosen by his or her IEP Team for participation in the program. The Morse School summer program does not choose the participating students, but rather relies on each student’s IEP Team to determine appropriateness of placement. The summer program then adjusts its program to address whatever needs are presented by the students chosen by their IEP Teams to participate in the program. Testimony of Lower.

During the summer of 2008, the students in classroom # 4 had a variety of disabilities and educational needs–for example, some children came from inclusion educational settings during the school year, while others came from substantially-separate settings; some children had significant academic needs to be addressed during the summer (for example, working on basic reading skills), while other students had high academic skills and required no academic assistance; some children had significant emotional or behavioral needs to be addressed during the summer, while others had none; and some children had significant social and related language needs to be addressed during the summer, while others had none. Approximately two or three students (of the 12 children in classroom # 4) had a disability on the autism spectrum. Testimony of Lower.

The daily schedule at the Morse School summer program includes a variety of social, recreational, and academic activities. The program is individualized not by the curriculum (which is set up to be appropriate for children with a wide range of disabilities, ages, and educational needs) but rather through the ability of the four adults in the room to work with each child to address his or her particular needs. For example, for Student who has significant social deficits, explicit instruction in social skills could be provided in the large group circle time at the beginning of the day and during the closing circle at the end of the day. Social skills could also be addressed as opportunities presented themselves during other parts of the day, such as during math and reading groups, as well as during recreational activities. Testimony of Lower; exhibit S-8.

4. YouthCare Summer Program .

During 2008, Student participated in the YouthCare summer program, which is operated by the Massachusetts General Hospital. The program ran from 8:45 a.m. to 2:30 or 3:00 p.m. Monday through Friday for seven weeks during the summer. The principal focus of the program was social skills development for children with disabilities on the autism spectrum. Additional, related issues (such as, in Student’s case, pragmatic language deficits) were also worked on with individual children. The students participating in the program were placed in groups, with each group typically having six children, a leader, and an assistant leader. When additional staff provided substantive instruction (for example, an art or drama teacher), the leader and assistant leader remained with the six children, with the result that there was a continuity of instruction regarding social skills in each activity throughout the day. Testimony of McLeod; exhibit P-1.

YouthCare staff consists of undergraduate, graduate, and professional level staff who have taken part in intensive training prior to the commencement of the program. Onsite supervisors, program specialists, and consultants support the YouthCare staff and children attending the program. Testimony of McLeod; exhibit P-1.

YouthCare considered Student to be appropriate for their program and to have had a successful experience during the summer of 2008. Student achieved success regarding his goal of maintaining eye contact and he made progress regarding his other social goals. Parent testified that Student thrived in this program. Testimony of McLeod, Parent.

D. DISCUSSION

It is not disputed that Student is an individual with a disability, falling within the purview of the Individuals with Disabilities Education Act (IDEA)1 and the state special education statute.2 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.”3 The Massachusetts special education statute also includes a FAPE requirement.4 FAPE must be provided in the least restrictive environment.5 In the instant dispute, Parent has the burden of persuasion.6

The issue in dispute in the instant appeal pertains to summer services . The state special education regulations utilize a regression standard to determine whether a summer program may be appropriate:

An extended year program may be identified if the student has demonstrated or is likely to demonstrate substantial regression in his or her learning skills and/or substantial difficulty in relearning such skills if an extended program is not provided.7

The federal special education regulations employ a FAPE standard:
(a) General . (1) Each public agency shall ensure that extended school year services are available as necessary to provide FAPE, consistent with paragraph (a)(2) of this section. (2) Extended school year services must be provided only if a child’s IEP team determines, on an individual basis, in accordance with §§300.320 through 300.324, that the services are necessary for the provision of FAPE to the child.8

Federal courts have interpreted the federal regulatory standard typically either to be a regression standard be met,9 or to mean that summer services are appropriate when the benefits accrued to a disabled student during a regular school year will be significantly jeopardized if he is not provided with an educational program during the summer months, with the parameter of requisite summer services defined by what is necessary to avoid this outcome.10

It is not disputed that Student’s significant weaknesses in navigating social interactions and his language processing difficulties negatively impact his ability to make adequate academic progress without support of special education staff. Development of Student’s social pragmatic skills is critical for him to be able to access the curriculum. In addition, Student’s social deficits present serious difficulties in the home and community environments and compromise his ability to function independently. Testimony of Grace, Parent; exhibits S-5, S-7, P-7, P-15; see also part C1 of this Decision, supra.

Cambridge agrees that Student is entitled to summer services, and that these services are needed “to prevent substantial regression of social and language skills.” Exhibits P-15, S-7 (IEP, at page 18).

I find that Student is at risk of significant regression regarding social skills (and related pragmatic language skills) during the summer, and that Student’s entitlement to FAPE requires that he receive a summer program which can appropriately address his social skills deficits so that the benefits accrued to him during the regular school year will not be significantly jeopardized.

The question in dispute is whether Cambridge has offered appropriate summer services to address Student’s social skills deficits, and if not, whether the summer program (YouthCare) utilized by Parent was appropriate for this purpose.11 In reviewing the appropriateness of Cambridge’s summer program, I rely on the description of this program by Mr. Lower (the teacher in charge of the Cambridge summer program), the testimony of Dr. McLeod (the executive director of YouthCare), and the testimony of two other Cambridge witnesses (Grace, Kelly).

Dr. McLeod testified that in order to address appropriately Student’s social and language needs during a summer program, Student should be placed with peers who are relatively the same age, who are at the same approximate social development level, and who share basic interests. In addition, all of the children in the group should have a diagnosis on the autism spectrum, and the group should be relatively small (no more than eight children). These criteria are necessary so that the children can connect individually with each other on a social level, find common ground within the group, and develop social skills within a group context. Finally, the staff must be well-trained regarding the development of social skills with children on the autism spectrum, and there should be a continuity of staff throughout the day. Testimony of McLeod. I find Dr. McLeod’s testimony to be candid and credible.12

Cambridge’s proposed summer program did not meet these minimum criteria. There was a continuity of staff throughout the day in the Cambridge summer program and, arguably, the Cambridge staff was well trained. However, the peer grouping of the Cambridge summer program was not appropriate to meet Student’s needs. This is because within classroom # 4 (in which Student would have been placed), the only criteria for admission was age (from 10 to 14 years old) and selection by the particular student’s IEP Team. The result was a broad mix of disabilities and educational needs, with only two or three children having a diagnosis on the autism spectrum. Also, notwithstanding that classroom # 4 was intensively staffed (with four adults), the grouping was too large as it would have included 13 children if Student had attended. In his testimony, Dr. McLeod made clear the central importance of an appropriate peer group and class size in order that Student’s social skills deficits be appropriately addressed during a summer program. Testimony of Lower, McLeod; see also part C3 of the Decision, supra.

I turn to the evidence provided by Cambridge. The testimony of Mr. Lower (the head teacher of the summer program) made clear that Student would receive social skills instruction if he attended the Morse School summer program, but Mr. Lower stated no opinion regarding the appropriateness of the program for Student. He made clear that it was the IEP team, rather than him or his summer program, that determined the appropriateness of Student’s placement in his program.

By way of explaining why they recommended the Morse School summer program over YouthCare, other Cambridge witnesses ( Grace, Kelly) testified that they believed that Cambridge’s Morse summer program provided the same components as the YouthCare program, but I find this conclusion to be correct only in the sense that each summer program sought to address social skills. The Cambridge witnesses stated their conclusions that the Morse School program would be appropriate for Student because it would include social skills training, but these witnesses provided insufficient explanation as to why they believed that the social skills training offered in the Morse School program would be appropriate to address Student’s particular needs. On the basis of this testimony, I do not find the Cambridge witnesses to be persuasive regarding the appropriateness of the Morse School summer program for Student.

After considering the credibility and persuasiveness of the witnesses and weighing the evidence presented at Hearing, I find that the Cambridge summer program was inappropriate for Student.

It is not disputed that the YouthCare summer program was appropriate to meet Student’s needs. For reasons already explained, this program was specifically tailored to address Student’s precise concern—that is, the social skills deficits (and related language deficits) of a child on the autism spectrum. Student made significant progress in this program during the summer of 2008. Testimony of McLeod, Parent; see also part C4 of the Decision, supra.

In sum, I find that the proposed Cambridge summer program was not appropriate and that the YouthCare program was appropriate for Student for the summer of 2008.

Cambridge takes the position that Parent’s expenses attributable to the YouthCare program should not be reimbursed because Parent did not provide the requisite ten-day notice to Cambridge. Specifically, Cambridge relies upon 20 USC 1412 (a)(10)(C), which provides in relevant part as follows:

(ii) Reimbursement for private school placement

If the parents of a child with a disability, who previously received special education and related services under the authority of a public agency, enroll the child in a private elementary school or secondary school without the consent of or referral by the public agency, a court or a hearing officer may require the agency to reimburse the parents for the cost of that enrollment if the court or hearing officer finds that the agency had not made a free appropriate public education available to the child in a timely manner prior to that enrollment.

(iii) Limitation on reimbursement

The cost of reimbursement described in clause (ii) may be reduced or denied–
(I) if–

(aa) at the most recent IEP meeting that the parents attended prior to removal of the child from the public school, the parents did not inform the IEP Team that they were rejecting the placement proposed by the public agency to provide a free appropriate public education to their child, including stating their concerns and their intent to enroll their child in a private school at public expense; or

(bb) 10 business days (including any holidays that occur on a business day) prior to the removal of the child from the public school, the parents did not give written notice to the public agency of the information described in item (aa) . . . . [Emphasis supplied.]

It is not disputed that Parent’s letter notice, dated June 27, 2008 and received July 1, 2008 to Cambridge, did not comply with the ten-day notice requirement since Student began the YouthCare program on June 25, 2008. However, failure to comply with the statutory notice requirement does not automatically preclude reimbursement. T he statute on its face,13 as well as BSEA Hearing Officer decisions interpreting this statutory section,14 make clear that I have discretion as to whether the Cambridge’s obligation to reimburse Parents should be reduced and, if so, by how much.

In exercising this discretion, I consider the equities.15 In so doing, I seek to understand the purpose of the statute and whether the purpose has been frustrated by Parent, with the result that Cambridge has been harmed. Just as the First Circuit has concluded that failure of a school district to follow IDEA procedures should have no legal consequence unless educational harm can be shown,16 so too Parent should not be penalized for failing to comply with a procedural requirement if her failure has not harmed Cambridge.

The First Circuit in Greenland School District v. Amy N. , 358 F.3d 150, 160 (1st Cir. 2004) (citations omitted) has described the purpose of the statutory notice provision as follows:

This [notice requirement] serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a free appropriate public education can be provided in the public schools.

This purpose, as articulated in Greenland , was met by the following chain of events. Cambridge was well aware of Parent’s interest in YouthCare back to at least March 18, 2008 when the parties entered into a mediation agreement requiring Cambridge to consider YouthCare. On June 4, 2008, Parent and several Cambridge staff exchanged e-mail messages regarding Student’s acceptance at YouthCare and Parent’s strong interest in Student’s attending the program. Prior to the June 12, 2008 IEP Team meeting, Cambridge staff researched and considered the YouthCare program and its own summer program. More specifically, Cambridge staff reviewed whether its own summer program provided similar components to YouthCare and whether its own program should be offered to Parent rather than YouthCare. In short, more than ten business days prior to Student’s beginning YouthCare on June 25, 2008, Cambridge was aware of the likelihood that Parent would privately place Student at YouthCare, and Cambridge developed its own plan for purposes of providing summer services to Student in lieu of YouthCare. Testimony of Parent, Grace; exhibits P-3, P-20, S-3, S-4; see also part C2 of this Decision, supra.

On these facts, I find that Cambridge was not prejudiced by Parent’s failure to provide the requisite ten-day notice. Cambridge has not argued to the contrary.

For these reasons, I find that Parent is entitled to reimbursement for her out-of-pocket expenses attributable to placement of Student at YouthCare during the summer of 2008. I further find that Parent’s failure to give the requisite ten-days notice to Cambridge should not result in a reduction of the amount of reimbursement due Parent.

Parent makes two additional claims. First, Parent takes the position that Cambridge violated the mediation agreement dated March 18, 2008, which required Cambridge to “consider” the YouthCare summer program. Parties to a dispute before the BSEA may enter into an agreement, pursuant to which they change their obligations and responsibilities under state and federal special education law. In the instant dispute, there is a mediation agreement that relates to rights and responsibilities that fall within the purview of a BSEA Hearing Officer.17 I therefore will determine whether Cambridge complied with its responsibilities pursuant to the agreement.18

By its terms, the mediation agreement did not require any particular kind of consideration—for example, it did not specify that it be the IEP Team that was to consider YouthCare—but simply required that there be consideration of this program by Cambridge, together with consideration of Cambridge’s own summer program. Two of the Cambridge IEP Team members (Grace, Kelly) obtained written information regarding YouthCare and considered whether the components of this program could be provided within Cambridge’s own summer program. On the basis of this prior review, they were prepared to make a recommendation to the IEP Team regarding YouthCare at the Team meeting on June 12, 2008. At that Team meeting, there was a brief discussion of summer services, and YouthCare was specifically raised by Parent’s advocate at that time. The Cambridge members of the IEP Team concluded that the Cambridge summer program, rather than YouthCare, would be offered Student. Testimony of Grace, Kelly, Parent; see also part C2 of this Decision, supra. This process did not provide Parent with the extensive or complete IEP Team discussion that she expected, but it was nevertheless sufficient to satisfy the requirements of the mediation agreement.

Second, Parent argued that she was not given sufficient opportunity to understand and consider the Cambridge summer program. However, it appears that the IEP Team meeting of June 12, 2008 was cut short when Parent and her advocate made clear that they were not interested in the Cambridge summer program. In addition, Parent never requested additional information or an opportunity to observe this program. Testimony of Grace, Kelly, Parent; see also part C2 of this Decision, supra.

For these reasons, I find against Parent regarding her claim that Cambridge failed to consider YouthCare and her claim that Cambridge failed to provide sufficient information regarding its own summer program.

E. ORDER

Cambridge’s proposed summer program at the Morse School was not appropriate for Student. The YouthCare program was appropriate for Student. Accordingly, Cambridge shall reimburse Parent for all of her out-of-pocket expenses attributable to her placement of Student at the YouthCare program for the summer of 2008.

By the Hearing Officer,

William Crane

Dated: October 16, 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

20 USC 1400 et seq .


2

MGL c. 71B.


3

20 USC 1400(d)(1)(A). See also 20 USC 1412(a)(1)(A); MGL c. 71B, ss. 2, 3.


4

MGL c. 71B, ss. 1, 2, 3.


5

20 USC 1400(d)(1)(A); 20 USC 1412(a)(1)(A); 20 USC 1412(a)(5)(A); MGL c. 71B, ss. 2, 3; 34 CFR 300.114(a)(2(i) ; 603 CMR 28.06(2)(c).


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

603 CMR 28.05(4)(d)1.


8

34 CFR 300.106.


9

E.g., Cordrey v. Euckert, 917 F.2d 1460, 1474 (6th Cir. 1990).


10

Kenton County School District, v. Hunt , 384 F.3d 269, (6 th Cir. 2004); MM by DM and EM v. School Dist. of Grenville County , 37 IDELR 183 (4 th Cir. 2002); Johnson v. Indep. Sch. Dist. No. 4, 921 F.2d 1022, 1028 (10th Cir. 1990); Alamo Heights Indep. Sch. Dist. v. State Bd. of Educ. , 790 F.2d 1153, 1158 (5th Cir. 1986). Although the federal FAPE standard may, arguably, be broader than the Massachusetts regression standard, the commentary to the 2006 federal regulations appears to take the position that states may properly use regression as their criteria for eligibility for extended year services. Federal Register, vol. 71, no. 156, August 14, 2006, page 46582, 3 rd column.


11

If a school district fails in its obligation to provide FAPE to a student with a disability, a parent may enroll his or her child in a private school program and seek retroactive reimbursement for the cost of the private school. To obtain reimbursement, the parent must demonstrate the inappropriateness of the school district’s program and the appropriateness of the parent’s program. See 20 USC 1412 (a)(10)(C)(ii); Florence County Sch. Dist. Four v. Carter , 510 U.S. 7, 11-13 (1993); Sch. Comm. of Burlington v. Dep’t of Educ., 471 U.S. 359, 370, 373-74 (1985); Diaz-Fonseca v. Puerto Rico , 451 F.3d 13, 31 (1 st Cir. 2006).


12

Scott McLeod, PhD, has been the executive director of YouthCare since 1991, a psychologist at Mass. General Hospital since 1994, and the chief psychologist at MGH Charlestown since 2007. He has substantial expertise regarding the programming and staffing needed to address the social skills deficits of children on the autism spectrum, such as Student. There was no indication that Dr. McLeod had an interest in the outcome of this dispute—the dispute focused entirely on Parent’s right to reimbursement, rather than payment to YouthCare. Testimony of McLeod; exhibit P-18 (resume). No other witness had a particular expertise with respect to the social deficits of children on the autism spectrum and how they should be addressed.


13

20 USC 1412 (a)(10)(C)(iii)(II).


14

E.g., In Re: Westfield Public Schools , BSEA # 08-6047, 14 MSER 208 (MA SEA 2008); In Re: Sharon Public Schools , BSEA # 06-1557, 106 LRP 53041, 12 MSER 252 (MA SEA 2006); In Re: Sudbury Public Schools , BSEA # 05-4726 and 05-4827, 106 LRP 287, 11 MSER 260 (MA SEA 2005).


15

See Diaz-Fonseca v. Commonwealth of Puerto Rico , 451 F.3d 13 (1 st Cir. 2006) (parent’s claim for reimbursement for expenses for private educational services involves an equitable remedy).


16

Roland M. v. Concord Sch. Comm., 910 F.2d 983, 994-95 (1st Cir. 1990).


17

20 USC 1415(b)(6)(A) (hearing officer’s jurisdiction includes disputes involving “ the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to such child”).


18

Federal courts have consistently required hearing officers and administrative law judges to consider such agreements when resolving a special education dispute. See, e.g., J.P. v. Cherokee County Bd. of Educ. , 218 Fed.Appx. 911 (11 th Cir. 2007 ) (claims regarding alleged breach of contract involving special education issues must be addressed through administrative due process remedies prior to consideration by the court); H.C. v. Colton-Pierrepont Central School Dist . , — F.Supp.2d —-, 2008 WL 2902076 ( N.D.N.Y. 2008) (“ provisions in … settlement agreement were sufficiently related to plaintiff’s 2006-07 IEP such that the IHO not only had the authority to enforce the settlement agreement, but had a duty to do so”); In Re: Longmeadow School District , BSEA # 07-2866, 14 MSER 249, footnote 8 (MA SEA 2008) (ruling analyzes issue and collects authorities).

 

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