Cody and New Bedford Public Schools – BSEA # 09-3103



<br /> Cody and New Bedford Public Schools – BSEA # 09-3103<br />

COMMONWEALTH OF MASSACHUSETTS

BUREAU OF SPECIAL EDUCATION APPEALS

In re: Cody1

BSEA# 09-3103

RULING ON MOTIONS FOR SUMMARY JUDGMENT

BACKGROUND

On November 13, 2008 Parent filed for a BSEA hearing against the New Bedford Public Schools (NBPS) and the Massachusetts Department of Children and Families (DCF) which has custodial rights regarding Cody. Parent seeks an order/decision against NBPS and DCF to both maintain and continue his most recent placement at St. Vincent’s day school and residential program (St Vincent’s). This appeal was assigned to Hearing Officer Catherine Putney-Yaceshyn who conducted several pre-hearing conference calls and issued preliminary rulings. On December 4, 2008 Parent, NBPS, and DCF reached a written agreement: 1) to put all other issues in abeyance; 2) to submit an agreed Statement of Facts (SOF) and to submit respective Motions for Summary Judgment (MSJ) solely on the issue Cody’s placement pending administrative appeal (stay put rights) by December 15, 2008; and 3) to orally argue their respective MSJ’s via telephonic motion session on December 18, 2008. On December 10, 2008 Hearing Officer Putney-Yaceshyn issued an order granting a postponement on all other issues and scheduling a telephonic motion session on December 18, 2008 at 11 a.m. The SOF arrived at the BSEA on December 16, 2008. NBPS’ MSJ and Memorandum of Law arrived at the BSEA on December 16, 2008. DCF’s Memordam of Law also arrived on December 16, 2008. Parent’s MSJ and Memorandum of Law arrived at the BSEA on December 17, 2008. Because of a scheduling conflict for Hearing Officer Putney-Yaceshyn, Hearing Officer Raymond Oliver was assigned on December 17, 2008 to review the parties written submissions, to hear oral arguments, and to rule upon the MSJs’. The motion session took place on December 18, 2008 at 11 a.m. as scheduled.

STIPULATION OF FACTS

1. Cody is a 13 year old boy who lived with his mother in New Bedford, Massachusetts through on or about August 22, 2006.

2. Cody is a disabled student who is eligible for special education services under state and federal special education law.

3. He attended New Bedford schools under an Individualized Education plan (IEP) covering the period between 5/8/06 and 5/8/07. This IEP was accepted by Mother on May 9, 2006.

4. The IEP provided for a substantially separate placement with a one-to-one ABA behavioral specialist, among other services.

5. Cody went into DSS (now DCF) CHINS custody on about August 22, 2006.

6. Cody was placed by DCF at St. Vincent’s in Fall River on or about August 25, 2006, where he resided and was educated. DCF paid the whole cost of this placement.

7. St. Vincent’s is approved by DESE for the provision of special education services to eligible students.

8. The placement at St. Vincent’s, effectuated by DCF, was never set forth in an IEP proposed by New Bedford.

9. The Parent was not offered, nor did she accept, any IEP written for St. Vincent’s.

10. The District proposed an IEP for the Student for the period from January 2, 2007 through January 2, 2008, offering a placement in a substantially separate program in a public school setting. The parent rejected this IEP.

11. During the spring of 2008, Mother was informed of the ultimate intention of DCF to return Cody home from St. Vincent’s.

12. Cody remained in the St. Vincent’s placement until on or about November 12, 2008, when funding for the placement was terminated and he was placed with his mother.

13. Prior to the Student’s discharge from St. Vincent’s, Mother voiced her objection to DCF regarding the removal of her son from St. Vincent’s.

14. The parties made various efforts to contact one another during 2008, but did not meet to conduct a Team meeting prior to Cody’s withdrawal from St. Vincent’s.

15. It is the District’s and DCF’s understanding that Mother lived in New Bedford, Massachusetts during the relevant time period at issue.

16. Prior to Cody’s withdrawal from St. Vincent’s he and his mother, through counsel filed a request for a DCF fair hearing.

17. DCF denied Mother a fair hearing.

STATEMENT OF POSITIONS

PARENT’S POSITION

Parent’s position regarding Cody’s stay put rights is that Cody’s actual physical location is controlling since the purpose of stay put is to limit disruption for the student while the dispute over placement is litigated. Parent argues that St. Vincent’s is Cody’s current placement/placement when the dispute arose, therefore he is entitled to remain there during the pendency of this dispute. Parent also argues that while DCF has the authority to place Cody in a residential school without the approval of NBPS, programmatic and fiscal responsibility to provide FAPE remains with NBPS, therefore St. Vincent must be considered an educational placement. Parent also argues that St. Vincent’s is Cody’s default placement because when DCF precipitously terminated Cody at St. Vincent’s, there was no pending IEP or existing placement. Parent also argues that DCF is responsible for maintaining Cody’s placement at St. Vincent’s because DCF improperly terminated his services there; did not follow IDEA rules or its own internal rules in removing Cody from St. Vincent’s to NBPS; and improperly denied Parent her DCF rights to a DCF fair hearing.

DCF’s POSITION

DCF’s position is that under both federal and state special education law the educational placement for a student determines his stay put rights; that DCF’s placement of Cody at St. Vincent’s was for non-educational reasons and did not constitute an educational placement; consequently DCF’s placement of Cody at St. Vincent’s did not create any stay put rights to St. Vincent’s under special education law. DCF contends that when it is awarded custody of a child it exercises custodial powers and one of the normal incidents of custody is to determine where the child shall live, just as parent or a guardian would do. While DCF might allow a child to remain at home with a parent, place a child in foster care, or place the child in a residential placement according to the best interests of the child, such placement is not an educational placement and DCF does not alter a child’s education placement by virtue of exercising its custodial authority pursuant to M.G.L. c.119 s. 21. Because DCF was never legally responsible for Cody’s educational program and never made an education placement for Cody, DCF could not alter or create his enforceable stay put rights. DCF contends that Cody’s stay put rights lie in his last accepted NBPS IEP i.e., the May 2006 to May 2007 IEP promulgated by NBPS and accepted by Mother.

NBPS’ POSITON

NBPS’ position is that Cody was placed at St. Vincent’s by DCF for clinical reasons on the basis of DCF criteria and not for the purpose of addressing his special education needs; that DCF did not consult with or involve NBPS regarding Cody’s placement at St. Vincent’s; and that DCF did not pursue NBPS for any programmatic or fiscal educational responsibility on behalf of Cody. NBPS contends that DCF’s placement of Cody at St. Vincent’s was for non-educational reasons; was not effectuated through the NBPS and the special education team/IEP process; and that St Vincent’s was not an educational placement for purposes of state or federal special education law. Since Cody was never placed by NBPS at St. Vincent’s through an IEP or pursuant to an agreement with DCF, St. Vincent’s cannot be Cody’s educational stay put placement. NBPS contends that the last IEP proposed for Cody by NBPS and accepted by Mother, the 2006-2007 IEP, is Cody’s last agreed upon placement/placement pending appeal/stay put placement.

RULING

Based upon the SOF and written legal arguments submitted by the parties, the oral arguments articulated by the parties at the motion session, and a review of the applicable law, Parent’s Motion For Summary Judgment is DENIED and NBPS’ Motion for Summary Judgment is GRANTED .

My analysis follow.

Pursuant to the Massachusetts Standard Rules of Adjudicatory Practice and Procedure 801 CMR 1.01(h) and the Federal Rules of Civil Procedure Rule 56(c) summary judgment is appropriate where there is no genuine issue of fact related to all or part of a claim or defense and the moving party is entitled to prevail as a matter of law.

The applicable federal and state special education law and the undisputed SOF fail to support Parent’s claim that Cody’s educational placement pending appeal/stay put placement is St Vincent’s. The same law and SOF do support NBPS’ and DCF’s position that Cody’s educational placement pending appeal/stay put placement is his last agreed upon IEP/placement at NBPS.

20 U.S.C. § 1415(j) provides, in pertinent part:

….during the pendency of any proceeding conducted pursuant to this section….unless the State or local educational agency and the parents otherwise agree, the child shall remain in the then current educational placement of the child…. Emphasis added.

See also 34 CFR § 300.518; 603 CMR 28.08(7).

The above placement pending appeal provisions or stay put provisions are designed to ensure that, during administrative and/or judicial appeal, a student remain in his last agreed upon educational placement that the parents and the educational authority agreed to be appropriate. See Verhoven v. Brunswick School Committee 207 F. 3d 1, 10 (1 st Cir. 1999). See also 14 MSER 404, 405 (2008) – BSEA #08-6416, Crane H.O.; and 14 MSER 136, 141 (2008) – BSEA# 08-0925, Berman H.O. Further, pursuant to 34 CFR § 300.116(b)(2) and 603 CMR 28.06(2)(a) a child’s educational placement must be based upon the child’s IEP .

Based upon the undisputed SOF, Cody’s last agreed upon educational placement was his 5/06-5/07 IEP proposed by NBPS and accepted by Mother which provided for a substantially separate educational placement along with a 1:1 ABA specialist and other related services within NBPS.

Based upon the SOF, St. Vincent’s has never been proposed by NBPS pursuant to a team meeting process and an IEP or accepted by Mother pursuant to an IEP from NBPS. St. Vincent’s has never been agreed to by NBPS in any way. Cody was placed at St. Vincent’s by DCF, after it obtained custody of Cody, where he resided and was educated totally at DCF’s expense for over two years. Pursuant to M.G.L. c.18B s.2 DCF is not an educational agency and does not provide formal educational services to children in its custody. The Massachusetts Department of Elementary and Secondary Education (DESE) has recognized that DCF does not make educational placements for children in its custody. (See Administrative Advisory SPED 2004-4). Finally, the BSEA has ruled in In re: Brockton Public Schools and Lawrice, 13 MSER 349, 351 n. 11 (2007) – BSEA# 07-6968, Beron H.O. that:
if DSS (now DCF) has placed a student of whom they have care or custody in a residential placement, the placement is made pursuant to the authority of DSS to determine where the child lives, and is not considered an educational placement . Emphasis added.

I find the instant situation analogous to a Parent who privately places a child at a residential placement and pays for the placement privately for several years then asks the public school for an IEP for the child but contends that the public school should fund the private residential placement pending appeal because that is the child’s most recent placement. Neither the above hypothetical residential placement nor Cody’s St. Vincent’s placement by DCF becomes a stay put placement or placement pending appeal.

Based upon the statute, regulations and cases cited above, I conclude that Cody’s receipt of an education at St. Vincent’s while residing there pursuant to DCF’s placement does not confer upon him any stay put rights or placement pending appeal rights to continue to attend St. Vincent’s pending this BSEA appeal. I conclude that Cody’s educational placement pending this BSEA appeal is his last agreed upon IEP proposed by NBPS and accepted by Mother.

ORDER

I. Parent’s Motion for Summary Judgment is DENIED .

II. NBPS’ Motion for Summary Judgment is GRANTED .

III. Within ten (10) days of receipt of this Ruling, Parent shall inform the BSEA, in writing, whether they wish this BSEA appeal to proceed and, if so, provide potential dates for hearing. NBPS and DCF shall respond to the BSEA, in writing, with potential hearing dates if Parent intends to proceed to hearing within five (5) days of their receipt from Parent.

By the Hearing Officer

Date: February 5, 2009

____________________________


1

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


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