COMMONWEALTH OF MASSACHUSETTS
SPECIAL EDUCATION APPEALS
Charles S.1 and Triton Public Schools
BSEA #07-0082
CORRECTED RULING ON TRITON PUBLIC SCHOOL’S MOTION TO JOIN GEORGETOWN PUBLIC SCHOOLS AS A NECESSARY PARTY
and
RULING ON PARENT’S MOTION FOR STAY-PUT PLACEMENT
On August 10, 2006, Parent filed a hearing request appealing Triton Regional School District’s (Triton) determination of ineligibility for special education services.2 Parent sought a BSEA determination that 1) Charles was in need of residential special education services, and 2) Parent should be reimbursed for Charles’s tuition costs at the Franklin Academy (Franklin), asserting that Franklin was the then current agreed-upon special education placement pending resolution of the dispute regarding his eligibility.
On August 31, 2006, Triton filed a Motion to Join Georgetown Public Schools (Georgetown), asserting that it is a necessary party to this case. That is, Charles resides in Georgetown’s district but is enrolled at Triton pursuant to school choice. As such, Triton is programmatically responsible, and Georgetown fiscally responsible, for Charles’s education. Parent objected to such joinder, asserting that full relief can be obtained with Triton. Georgetown’s counsel has been present at several conference calls and the prehearing regarding this case, however, Georgetown has not taken a position in this matter of joinder. Given that Georgetown would be the school district responsible for financing any potential residential school tuition, if that be the result of the due process proceeding, Triton’s Motion to Join is now GRANTED , and Georgetown is joined as a necessary party.
On September 8, 2006, Parent filed a Motion for Order Regarding Interim Placement, including Exhibits A – C; on September 14, 2006, Triton filed its Opposition to such motion, including an affidavit from Christine Kneeland and Exhibits 1 – 5. Over Parent’s September 14, 2006 objection, the Massachusetts Department of Education’s September 6, 2006 letter from Attorney Keliher is entered into the record as School Exhibit 6, for it is relevant to the current dispute, and Parent’s assertion that non-party letters should not be admitted puts form over substance. That the letter was addressed to the Hearing Officer is not problematic, as long as it is Triton that requests it be entered into the record. In addition, pursuant to an October 3, 2006 BSEA order, Parent and Christine Kneeland submitted affidavits and supporting documentation which are entered into the record.
ISSUE
Whether Franklin, an unapproved private boarding school in E. Haddam, Connecticut, is Charles’s current agreed-upon special education placement – “stay-put placement” – pending resolution of the dispute before the Bureau, or whether Triton’s proposed IEP calling for the provision of the then current agreed-upon services at its high school is Charles’s stay-put placement.
POSITIONS OF THE PARTIES
Parent’s position is that Charles retains his stay-put placement pending resolution of the dispute regarding his eligibility for special education services, pursuant to Massachusetts law. Further, Franklin serves as the stay-put placement. Triton had developed an IEP calling for this placement, and Parent had accepted it. This is the school he has attended since the fall of 2005 and continues to attend. It is true that Franklin is an unapproved school that refuses to participate in any publicly funded program, and that because of this, the parties agreed to an unusual arrangement for funding this program until the parties were able to locate an alternative appropriate placement. However, this does not change the fact that it is a program that the parties agreed to as the appropriate educational program addressing Charles’s special education needs.
Triton’s position in this matter is that Charles does not retain rights to a stay-put placement, pending resolution of the dispute regarding his eligibility for special education services. Further, even if he did have such rights, that placement is not Franklin, but rather, the Triton High School. It is true that parties had agreed that Charles would attend Franklin in the past, however, it turns out that that placement is not a special education program and does not implement IEPs. Given its refusal to implement IEPs, it cannot be a stay-put placement. Thus, the last agreed-upon placement for stay-put purposes is the Forman School, the residential Chapter 766-approved special education school that Charles attended prior to his Franklin placement. However, given that Charles was expelled from that school, that placement is unavailable. Thus, given no legitimate available agreed-upon placement, it is incumbent upon Triton to develop a comparable placement implementing the same services. Its proposed IEP placing him at Triton’s high school provides his then current agreed-upon services pending a resolution of the current dispute.
FACTS
The pertinent undisputed facts for purposes of determining Charles’s stay-put placement are as follows:
Charles, a 17-year old 11 th grader, resides in Georgetown, Massachusetts. Since 2002 or thereabouts, he has been a school-choice student within the Triton Public Schools. In November of 2004 after attending Triton’s schools for several years, Triton deemed Charles in need of a residential educational program. As such, Triton is programmatically responsible for Charles’s education, and Georgetown Public Schools (Georgetown) is responsible for financing his educational program. He attended the Forman School, a private residential special education school, pursuant to Triton’s November of 2004 – November of 2005 IEP. In May of 2005, Forman expelled him.
On May 31, 2005, Triton convened a TEAM and then reissued an IEP, placing Charles at the Franklin Academy (Franklin) for the remainder of the November of 2004 – November of 2005 IEP period. Parent accepted this IEP on June 29, 2005. (Parent Exh. A). Franklin is an unapproved private boarding and day school in E. Haddam, Connecticut, serving students with nonverbal learning differences in grades 8 – 12. It “helps students with NLD manage their unique strengths and weaknesses as they pursue college and career goals.” (Parent Exh. B). Charles began attending Franklin, however, the funding of this placement quickly became an issue, for Franklin refused to participate in the Massachusetts Department of Education (DOE) “sole source process” necessary for public funding. That is, on September 21, 2005, Franklin wrote a letter to Triton stating that as a policy, Franklin is not a special education facility and would not accept public funding. (School Exh. 1). Accordingly, Parent started paying for the placement while Triton sought assistance from DOE, and on September 22, 2005, filed for a hearing before the Bureau of Special Education Appeals in resolving this funding issue. (See BSEA #06-1676). With the assistance of the Bureau of Special Education (BSEA) and the Massachusetts Department of Education, in November of 2005, Triton, Georgetown, and Parent achieved an agreement wherein Parent would pay the tuition, Triton would reimburse her, and Georgetown would reimburse Triton, thus facilitating the funding of this placement “for as long as Franklin remains his placement”. (Parent Exh. C). Triton initiated the three-year reevaluation process and the search for an appropriate, Chapter 766 approved placement.
After a lengthy process in obtaining evaluations, on March 13, 2006, Triton convened a TEAM to consider the completed evaluations and determined that Charles was no longer a student eligible for special education services. (School Exh. 4). At the TEAM meeting, Parent voiced her disagreement with this determination, though Ms. Kneeland does not remember Parent stating that she was seeking to have Charles’s placement continue at Franklin. (Parent’s October 4, 2006 aff. ¶5, Kneeland’s October 6, 2006 aff. ¶4). Triton acknowledged Charles’s and Parent’s disagreement with the TEAM’s ineligibility determination in its March 14, 2006 notice to Parent. In that notice, Triton also informed her of her right to request independent educational evaluations and to access the Massachusetts Department of Education’s dispute resolution forums, or “alternatively, [she] may notify the district directly of [her] dispute with the finding, in which case the district will contact the BSEA”. Parent did not think that this notice required her to provide a written statement of the dispute, given that the notice acknowledged the dispute. Further, the notice stated no time limits for a written response, nor provided for a signature or a reject/accept choice, as Parent was accustomed to seeing on IEPs. Rather, Parent assumed that Triton would report the dispute to the BSEA, as it had done in the past. (P-1, Parent’s October 4, 2006 aff. ¶6, 7, 8)3 . In fact, neither party notified the Bureau as to this dispute, and Parent did not seek an independent evaluation. (Kneeland’s October 6, 2006 aff. ¶5). Parent did not state in writing her disagreement with the ineligibility determination until June 14, 2006, after Triton had sent her a notice regarding Charles’s 2006 – 2007 registration and class schedule as a regular education student. (P-3). Parent responded to the Director of Guidance, stating: “As Triton is fully aware, Charles and I rejected Triton’s finding of ineligibility at the March TEAM meeting. He will not be enrolling at Triton High School for the 2006 – 2007 school year.” (P-4). Parent understood that Charles’s placement at Franklin was secure, pending her dispute with Triton. This understanding was reinforced by the fact that Charles was allowed to continue at Franklin and by Triton’s continuing payment to Parent for tuition expenses. (Parent’s October 4, 2006 aff. ¶10). Had she realized that the placement was not protected, she would have acted promptly to move the BSEA case toward resolution. (Parent’s October 4, 2006 aff. ¶11). On June 20, 2006, Triton sent Parent the Procedural Safeguards outlining her rights should she wish to contest in writing Triton’s finding of no eligibility. She also stated “Charles has no entitlement to placement, no placement pending appeal, no IEP, and no legal barrier for him to continue at Franklin Academy.” (Parent Exh. 5). Further, on June 23, 2006, Triton notified the BSEA mediator of the disputed determination. (Parent Exh.7, Kneeland’s October 6, 2006 aff. ¶7 and attach. A).
On July 17, 2006, Triton withdrew its BSEA hearing request, asserting that there were no currently disputed issues regarding Charles’s placement. (Parent Exh. 8). On July 19, 2006, two days after Triton filed this withdrawal, Parent filed the current hearing request, asserting that the parties disputed the eligibility determination and asserting that this hearing request should be part of the pending placement case before Hearing Officer Oliver, BSEA case #06-1676. On August 11, 2006, after the BSEA rendered Parent’s July 19, 2006 hearing request insufficient, Parent re-filed her hearing request, seeking a determination that a) Charles requires a residential special education placement, and b) his stay-put placement pending resolution of this dispute, is Franklin. On September 11, 2006, Triton convened a TEAM to determine Charles’s stay-put placement and on September 12, 2006 developed an IEP for Charles’s return to the public high school, providing the agreed-upon special education services there, pending resolution of the eligibility dispute. (School Exh. 2).
Charles has continued attending and currently attends Franklin. (Parent’s October 4, 2006 aff. ¶2)
FINDING
After reviewing the documentary evidence and reading the parties’ memoranda, I conclude that under Massachusetts law, Charles has rights to a “stay-put” placement pending resolution of the parties’ dispute regarding his eligibility for services. I further find that the then current placement at the time the dispute arose – March 13, 2006 – was Franklin and that therefore, Franklin is his stay-put placement. My reasoning follows.
The relevant state and federal regulations are as follows:
In accordance with state and federal law, during the pendency of any dispute regarding placement or services, the eligible student shall remain in his or her then current education program and placement unless the parents and the school district agree otherwise. 603 CMR 28.08(7).… during the pendency of any administrative or judicial proceeding regarding a due process complaint notice requesting a due process hearing under §300.507, unless the State or local agency and the parents of the child agree otherwise, the child involved in the complaint must remain in his or her current educational placement. 34 CFR 300.518.
Thus, in Massachusetts, as long as there is a dispute as to a special education student’s services/placement, the student retains the right to remain in his then current educational placement (“stay-put”) until the dispute is resolved. Under federal law, however, this stay-put right would apply only where a due process proceeding was initiated to resolve the dispute; given the more expansive right in Massachusetts, it takes precedence over federal law. See David D. v. Dartmouth School Committee 775 F2d. 411 (1 st Cir. 1985); Stock v Mass. Hospital School , 467 NE2d 448 (Mass. 1984).
Simply put, in March of 2006, Charles was attending Franklin pursuant to an agreed upon IEP; as with any disputed proposed change in placement for Massachusetts special needs students, Charles retained the right to stay in the then current educational placement – Franklin – pending resolution of the dispute regarding his placement. (Under federal law, given Parent’s failure to file for the due process proceeding until several months after the dispute surfaced, arguably, Charles’ stay-put right would have ended thirty days after receiving notice of the recommended change in placement. See 34 CFR 300.518.) It is true that in this case, the change of placement is a proposed termination of services – a complete withdrawal of special education services due to a proposed change in Charles’ eligibility. Neither federal nor Massachusetts law provides an exception to the rule in this situation: whether a change to different special education services or to no services, a current special needs student has the right to dispute that position and a right to “stay put” pending resolution of the dispute. See 603 CMR 28.08(7), 34 CFR 300.518.
Triton is unpersuasive that Charles’s status as a special education student ended when Parent failed to file a written notice disputing the March 14, 2006 eligibility finding. If Parent had failed to notify Triton, his status as a special education student arguably would have ended April 13, 2006, after the thirty-day period provided Parents to accept or reject in whole or in part a TEAM’s IEP. (See 603 CMR 28.05(7)(a)). Without such status, he would retain no stay-put rights. However, Parent did in fact notify Triton that she disputed the TEAM’s determination of ineligibility at the Team meeting, while Charles was still a special education student receiving services. Triton acknowledged that Parent disputed their finding. Arguably, a parent should notify the school in writing that they dispute the finding in order that the stay-put rights are clear, though the regulation does not explicitly state that. See 603 CMR 28.05(7), 28.08(7). However, even if a written notice was required, this procedural error does not affect the status of this case, for Triton clearly knew of the dispute and stated this in writing to Parent. Given this knowledge, Parent reasonably understood that nothing more was required. This is particularly noteworthy, given that Parent was not provided a sheet requiring a signature or a reject/accept choice, as would be provided with proposed IEPs. Triton did include a statement as to Parent’s right to “take advantage of any dispute mechanism available to refute the Team’s refusal to act”. Under federal law, Parent would have had to file for a due process proceeding. However in Massachusetts, given Charles’ right to stay-put until the dispute was resolved, it was Triton, not Parent, who was requesting a disputed change in placement, and it was Triton, not Parent, who bore the responsibility of seeking the Bureau’s intervention to resolve the disputed change in placement. Triton apparently thought it did not bear that responsibility, for it assumed that the Franklin placement would end at the end of the school year. However, even if the Franklin placement were not to continue, Triton still bore the responsibility of seeking a due process proceeding, given that the parties disputed the proposed change in placement from a residential special education setting to a regular education setting with no special education services. Parent reasonably understood that nothing more was required from her.
Having established that Charles retained “stay-put” rights, the question is where. Parents are persuasive that Charles’s “stay-put” placement is Franklin, for the parties agreed to this placement and Triton developed an IEP calling for Franklin, Parents accepted it, Charles enrolled there, and the parties executed the financial agreement ensuring that the placement was free to Parent. (Parent Exh. A).
Triton’s statement that Franklin cannot be the “stay-put” placement because it fails to offer special education services is perplexing, for Triton issued an IEP and placed Charles there on the basis that it addressed his special education needs; the IEP implies that it is Triton’s best effort at an appropriate placement addressing Charles’s special education needs. Further, clearly Franklin’s program is designed for the educational needs of students with nonverbal learning differences (Parent Exh. B), and Triton recognizes Charles’s disability as just that – his disability includes “non-verbal characteristics which features Asperger Syndrome Symptomology”. (Parent Exh. A).
Triton is unpersuasive in its assertion that Franklin cannot be the “stay-put” placement because DOE cannot authorize the placement. It is true that counsel for DOE wrote a September 5, 2006 letter stating that DOE “would be unable to authorize or fund the student’s placement at Franklin Academy for the 2006 – 2007 school year … given that student’s placement at Franklin Academy cannot comply with applicable special education law …” (School Exh. 6). However, the fact is that Triton, along with Georgetown and Parent, had agreed to provide this placement for the 2005 – 2006 school year and in fact provided it. The intent may have been to find an alternative placement as soon as possible, however, absent an explicit waiver of “stay-put” rights, Charles has the right to stay at the placement until the current dispute is resolved. Clearly, no explicit waiver was obtained.
Triton and Georgetown shall reimburse Parent according to the 2005 – 2006 settlement agreement and take any other necessary steps to ensure Charles’ continued educational placement at Franklin until this case is resolved.
A hearing regarding the eligibility dispute and placement dispute will convene on October 17, 2006 as previously scheduled.
By the Hearing Officer,
___________________________________
Date: October 13, 2006
1
Charles S. is a pseudonym selected by the Hearing Officer to protect the privacy of the student in publicly available documents.
2
Parent had filed a previous BSEA hearing request on July 19, 2006, but the BSEA upheld Triton Public School’s assertion that the hearing request was insufficient to serve as proper notice as required under the law.
3
The parties’ BSEA case # 06-1676 was still open at this time. (Parent’s October 4, 2006 aff. ¶4).