Dennis-Yarmouth Public Schools and Herrell – BSEA # 07-1284



<br /> Dennis-Yarmouth Public Schools and Herrell – BSEA # 07-1284<br />

COMMONWEALTH OF MASSACHUSETTS

Bureau of Special Education Appeals

In Re: Dennis-Yarmouth Public Schools & Herrell1

BSEA #07-1284

Ruling on Parents’ Motion for Summary Judgment

This matter comes before the Bureau on the Parents’ Motion for Summary Judgment and the School’s Opposition thereto. Both parties submitted written briefs and documents in support of their respective positions, as well as additional briefs in response to the position of the other party. Oral arguments were heard on October 24, 2006. The issue presented is narrow and the pertinent facts few.

Summary of the Facts

1. Herrell is a 14 year old 8 th grade student. He has multiple disabilities including cerebral palsy, retinopathy of prematurity, anxiety disorder, non-verbal learning disability and dysfluency disorder, and has received special education services through the Dennis-Yarmouth Public Schools for many years. During the 2004-2005 and 2005-2006 school years Herrell received home tutoring for all his academic classes through the Dennis-Yarmouth school system. By agreement the Parents provided all related services. (Dennis-Yarmouth Response to Parents’ Answer to Complaint, ex. 2; Parents’ Motion for Summary Judgment, ex. 1, 2, 3)

2. A Team meeting was held on May 18, 2006, to develop an IEP for the 2006-2007 school year. The Team discussed reintegrating Herrell into a substantially separate classroom in the High School. The placement page of the proposed IEP, however, indicates that Herrell’s special education services would be delivered in the “tutoring” setting. The placement page was initiated by the then Dennis-Yarmouth special education director, David Kennedy. The Parent consented to the placement decision on June 12, 2006. (Dennis-Yarmouth Response to the Parents’ Answer to Complaint, ex. 1; Parents’ Motion for Summary Judgment, ex. 5)

3. The “PL-2” is an administrative form indicating a student’s placement/environment information. The PL-2 issued for Herrell for the IEP dated 5/18/2006 to 5/17/2007 states: “tutoring 7/6/06-7/1/07”. (Dennis-Yarmouth Response to the Parents Answer to Complaint, ex. 1; Parents’ Motion for Summary Judgment, ex. 6)

4. During the summer 2006, Judith Dion became the special education director for Dennis-Yarmouth, replacing David Kennedy. The Parent met with Ms. Dion on August 14, 2006. The Parent was told that Dennis-Yarmouth intended to reintegrate Herrell into the High School and would not abide by any agreement to the contrary made by the prior special education director. (Parents’ Motion for Summary Judgment, ex. 1)

5. On August 24, 2006, Dennis-Yarmouth filed a request for hearing at the Bureau. The School’s request stated that on June 12, 2006 the Parent had rejected the IEP proposed by Dennis-Yarmouth. The School sought a determination that a substantially separate classroom in the High School would provide a free, appropriate public education to Herrell. (School request for hearing, administrative file)

6. No Team meeting was held between June 12, 2006 and August 24, 2006.

Discussion

Summary Judgment is a tool available under BSEA Rule VII and 801 CMR 1.01 (7)(f) when the record establishes that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Here the moving party, the parents, advance multiple arguments in support of their Motion for Summary Judgment. Most rely on an extensive discussion of the role of privately negotiated settlement agreements in BSEA proceedings. Similarly the School seeks to have the BSEA determine, or perhaps more accurately abandon, the validity of written agreements between parents and schools in the context of IDEA disputes. I need not reach these arguments. The record presented here by both parties contains a school proposal for tutoring services for the period 7/06 to 7/07. This proposal was accepted by the Parent. Both the school proposal and the parental consent were made in the context of an IEP and memorialized on standard IEP form pages. There has been no Team meeting since that IEP was developed and accepted. Those are the pertinent undisputed facts.

The legal conclusions to be drawn from those facts are equally clear. The Parents have accepted an IEP developed by the Dennis-Yarmouth School system for tutoring. They are entitled to immediate and full implementation of that IEP. A change in school administrative personnel is not a relevant factor in determining the special education needs of a student, or determining whether an accepted IEP is to be implemented.

Should the School, or the Parent for that matter, sincerely believe that a current IEP and/or special education placement is not providing FAPE to a student, the proper course is to reconvene the student’s Team. The BSEA will not relieve a school of its obligation to provide special education services it agreed to provide, and to which the Parent consented, unless there has been full compliance with the procedural requirements of the IDEA.

I find that no genuine issue of material fact exists because both parties produced the same accepted IEP. Further I find that, as the moving party, the Parents are entitled to Summary Judgment as a matter of law since the IDEA requires implementation of an accepted IEP absent an intervening Team meeting or exigent circumstances justifying an administrative or court order changing a student’s placement.2 Neither condition was shown here. The School’s hearing request is therefore premature and should be dismissed.

Order

The Parents’ Motion for Summary Judgment is GRANTED. The School’s Request for Hearing, filed on August 24, 2006, is Dismissed, with prejudice.

November 6, 2006

Lindsay Byrne, Hearing Officer

The Dismissal by the Bureau of Special Education Appeals is a final action and is not subject to further agency review. Because 20 U.S.C. s.1415(i)(2)(A) requires the Bureau decision to be final and subject to no further agency review, the Bureau cannot permit motions to reconsider or to re-open a Bureau decision once it is issued. Any party aggrieved by the Bureau decision may file a complaint in the Superior 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)(A). Under Massachusetts General Laws, Chapter 30A, Section 14(1), appeal of the final Bureau decision must be filed within 30 days of receipt of the decision.


1

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


2

See Eg. 603 CMR 28.05(7)(b); 20 U.S.C. 1415(j).


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