Dracut Public Schools and Melmark New England – BSEA # 09-1566
COMMONWEALTH OF MASSACHUSETTS
BUREAU OF SPECIAL EDUCATION APPEALS
In Re: Dracut Public Schools and Melmark New England
BSEA # 09-1566
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.
An expedited hearing was held on September 12, 2008 in Malden, MA before William Crane, Hearing Officer. Those present for all or part of the proceedings were:
Cassady Byers Out-of-District Team Chairperson, Dracut Public Schools
Steven Stone Executive Director of Special Education, Dracut Public Schools Tiffaney Esposito Director of Residential Services, Melmark New England
Frank Bird Chief Clinical Officer, Melmark New England
Rita Gardner Executive Director, Melmark New England
Kevin Murphy Attorney for Dracut Public Schools
William Hunt Attorney for Melmark New England
Henry Clark Attorney for Melmark New England
The official record of the hearing consists of documents submitted by the Dracut Public Schools and marked as exhibits S-1 through S-22; documents submitted by Melmark New England and marked as exhibits M-1 through M-20; and approximately one day of recorded oral testimony and argument. Closing arguments were made orally at the end of the hearing day on September 12, 2008, and the record closed on that date.
This is a dispute between Dracut Public Schools (Dracut) and Melmark New England (Melmark) regarding the stay put placement for Student. It is not disputed that as a result of his disabilities and behavior caused by his disabilities, Student requires intensive residential educational services.
On May 2, 2006, Dracut placed Student at Melmark to receive residential educational services, and except for hospitalizations, Student has received his educational services at Melmark since that date. Most recently, Student was hospitalized on an emergency basis on July 18, 2008 and since July 30, 2008, Student has been at Bradley Hospital’s (Bradley) Center for Autism and Developmental Disabilities. Bradley is a psychiatric hospital in Rhode Island. Student may be discharged from Bradley at any time and would then require continued residential educational services.
Dracut has been making efforts to locate a new educational placement for Student. Until another appropriate placement is identified, Dracut seeks to have Melmark remain available to take back Student should he be discharged from Bradley. For this purpose, Dracut filed a hearing request with the Bureau of Special Education Appeals (BSEA) on August 27, 2008, seeking to establish that Melmark continues to be Student’s stay put placement.
Taking the position that Student is unsafe in its program, Melmark has sought to terminate Student’s placement on an emergency basis and foreclose Student’s return to Melmark. Melmark opposes any BSEA determination that Melmark is Student’s stay put placement.
Parents are not parties to this dispute. Through her testimony, Mother has taken the position that Melmark is no longer safe or appropriate for her son. Mother seeks continued services at Bradley until a new, appropriate residential educational placement can be found. For these reasons, Parents oppose a return of their son to Melmark, and they oppose a determination that Melmark is Student’s stay put placement.
The issue to be decided in this case is whether Melmark is Student’s stay put placement; and if so, whether Dracut may place Student at Melmark upon his discharge from Bradley and maintain Student at Melmark until Melmark is no longer Student’s stay put placement.
Student Profile .
Student is a twelve-year-old boy who has been diagnosed with autism, an unspecified mood disorder, and a seizure disorder. Student’s accepted IEP calls for residential educational services. Presently, he is at Bradley Hospital. Parents reside in Dracut, MA. Testimony of Mercurio; exhibit S-2 (IEP attached to Hearing Request).
Student can be affectionate and responsive to others at times. He has shown an excellent capacity to learn new communication skills. Testimony of Mother, Bird, Esposito.
As a consequence of his disabilities, Student has behavioral difficulties, which include self-injurious behavior, aggression towards others, and property destruction. These behaviors have presented an extreme challenge to his service providers. At times, Student has required up to four staff to manage his violent outbursts and self-destructive behavior. Medication trials and behavioral consultations have failed to provide effective ways of reducing Student’s behavioral difficulties, and Student’s behavioral difficulties have intensified over the past two years. Emergency psychiatric hospitalizations have been utilized when Student’s behavior has overwhelmed his educational service providers. Testimony of Gardner, Bird, Gold.
Educational History .
On May 2, 2006, Student was placed at Melmark on a residential basis. Melmark is a day and residential special education school located in Andover, MA. Melmark is structured as a community-based residential program, with students living in a number of residences in communities near Andover. Student was placed at the Melmark community residence located in Dracut, along with seven other students. Student and the others living in this residence were transported daily by van between the school program in Andover and the Dracut residence. Testimony of Gardner.
Immediately prior to his Melmark admission in 2006, Student had been at Hampstead Hospital for 18 months. As part of the admissions process, Melmark staff visited Student several times while he was at Hampstead Hospital. During these visits, Student presented as cooperative and compliant with few significant behavior challenges. Upon his arrival at Melmark, Student immediately presented significant behavioral difficulties, raising the question of whether Melmark was an appropriate placement. It seems likely that the medication Depakote, which Student received while at Hampstead Hospital, had the effect of significantly reducing his behavioral difficulties. However, serious medication side effects developed with the result that prior to Student’s transfer to Melmark in 2006, Hampstead discontinued the Depakote medication. Testimony of Bird, Gold.
After admission to Melmark, assessments were performed and Melmark sought to address Student’s behavioral difficulties through Applied Behavior Analysis interventions. Minor behavioral improvements were observed over time, but they were only temporary. Student was aggressive towards himself (for example, hitting, gauging, and scratching himself) and others (for example, hitting others). He had difficulty sleeping and eating, and frequently he did not use the toilet to defecate. He began shredding his clothing and trying to ingest it, he tore mattresses and tried to eat the mattress filling, he destroyed walls and tried to ingest the wall material. Student was described as having a chronic, acute behavioral disorder with only short periods of stabilization. Testimony of Gardner, Bird.
Melmark made environmental modifications within Student’s Dracut residence – for example, placing Plexiglas over the windows, moving Student to a single room, replacing walls with more durable material, and adhering his mattress to the floor. Testimony of Gardner, Bird.
By late 2007, Student’s behavior had further intensified. Even with continuous 1:1 staffing, Student was able to break the glass windows in the residence even though they were covered by Plexiglas, he would bounce on his mattress to bang his head against the ceiling, he kicked others causing injury, and he continued to destroy walls and sought to ingest wall material. By January 2008, there were cyclic, extended periods of crying, exceptional distractibility, and screaming. There was significant self-injury, including lacerations and bruising. Transitions both at school and in the residence (for example, going to the bathroom, taking a shower, or going to a meal) required two or three staff to address Student’s intense aggression. In order to maintain the safety of Student and others, Melmark began to restrict his movements. This resulted in segregation of Student for significant periods of time. Because of Student’s behavior and the need to isolate him at times, effective implementation of his IEP became impossible. Testimony of Gardner, Bird, Gold; exhibits S-19, S-21, M-2, M-7.
Melmark continued to analyze Student’s behavior using multiple methods but without success. His behaviors were often impulsive, with no clear, identifiable precursor. His affect did not always match his behavior (for example, he sometimes smiled or appeared happy while being aggressive). With the assistance of its child psychiatry consultant (Gold), Melmark sought, unsuccessfully, to find new medications that might help Student. Testimony of Bird, Gold; exhibit M-7.
At Melmark’s request, there was a January 2008 Team meeting with Dracut staff, at which time Melmark staff expressed their concerns regarding the safety risks presented by Student and his lack of progress on IEP goals. Dracut staff began looking for a possible new residential educational placement for Student. Melmark saw the need for hospitalization of Student, and on April 25, 2008, Student was placed at Bradley Hospital’s Center for Autism and Developmental Disabilities for the purpose of assessing his behavioral and medical status related to his mood disorder. It was hoped that Bradley would identify new pharmacological and behavioral interventions. Testimony of Gardner, Bird, Stone, Byers; exhibit M-7.
On July 7, 2008, Student was discharged from Bradley back to Melmark. At the discharge meeting, Bradley staff made several general recommendations to Melmark staff regarding the role of communication, reinforcement strategies, and ways to address Student’s sensory needs. Melmark staff agreed with these recommendations, but all of the recommendations had been a part of Student’s Melmark program prior to the Bradley placement. Consequently, the Bradley recommendations did not result in any useful adjustment of services, interventions, or medication upon Student’s return to Melmark. Testimony of Bird, Mercurio.
Immediately upon Student’s return to Melmark from Bradley on July 7 th , new, aberrant behaviors emerged, and the frequency and severity of Student’s dangerous behaviors increased. Student required two or three staff to keep him safe, yet even with this level of staffing, Student was able to injure himself and others, and he destroyed property. Student attempted rectal probing for the first time, using puzzle pieces and small toys. He sought to bite others for the first time. There was more intense head banging, including banging his head against glass windows, ceramic sink and walls, and the hooks on the back of doors. Food intake was inconsistent–sometimes he would eat and at other times he would not. Student’s previous, inappropriate urination and defecation continued but now he would smear feces on walls, or he would step on the feces and walk around, or he would throw the feces at others, or he would try to eat his feces. He would put his hand down his throat, trying to choke himself, even after handling his own feces. He kicked another child in the head and attempted to punch and spit on others. Three Melmark staff were seriously injured as a result of Student’s behaviors during this time. All of this resulted in Melmark further isolating him from other students in order to maintain safety. Testimony of Gardner, Bird, Gold; exhibits M-3, M-4, M-5, M-6.
On July 18, 2008, with the assistance of its child psychiatry consultant, Melmark initiated an involuntary emergency psychiatric hospitalization of Student. He was admitted to the Lowell General Hospital emergency room on that date, he was transferred to New England Medical Center Pediatric Intensive Care Unit on July 25, 2008, and on July 30, 2008 Student was re-admitted to the Center for Autism and Developmental Disabilities at Bradley Hospital. Testimony of Gardner, Bird, Gold, Mercurio.
On July 31, 2008, there was a Team meeting at which Melmark provided notification to Dracut that it was terminating Student from its program. By letter of the same date, Melmark followed up with written notification of emergency termination, recounting some of the severe behaviors demonstrated by Student and how Melmark, even with three or four staffing who are rotated every 60 minutes because of fatigue, had not been able to maintain Student’s safety or the safety of others. In its written notification, Melmark concluded that it would be “unfair” to bring back Student to Melmark where basic health, safety, and a reasonable quality of life cannot be maintained for Student and others in his environment and where Student has not been able to make educational progress. Testimony of Gardner; exhibits S-7, S-8, M-11.1
Since July 30, 2008, Student has remained a patient at Bradley. As of the date of the hearing in this matter (September 12, 2008), Bradley believed that Student met criteria for psychiatric inpatient hospitalization. Hospital staff reported that Student continued to exhibit challenging behaviors, including self-injury, aggression towards staff and peers, and tantrums. Student’s hospitalization is being paid through private insurance. It is unknown how long Student will remain at Bradley. Testimony of Mercurio.
Although Dracut has made a variety of inquiries to other residential programs, no appropriate placement has been identified and no program has accepted Student. It would be unsafe for Student to return home. Testimony of Stone, Byers, Mother.
It is not disputed that Student is an individual with a disability, falling within the purview of the federal 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 In the instant dispute, Dracut has the burden of persuasion since it is the party seeking relief.5
The IDEA’s stay put provision provides, inter alia, that “during the pendency of any proceedings 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 such child.”6 Its essential purpose is to preserve the status quo pending resolution of a dispute between the parties, thereby preventing unilateral action by a school district in contravention of a student’s or parent’s objection, until the completion of due process proceedings .7 The IDEA’s stay put requirement may apply to a private school.8
For purposes of the instant dispute, the essential question is the determination of Student’s stay put placement, which is described within the above-quoted statutory language as the “then-current educational placement.” The IDEA and regulations promulgated thereunder do not define this term.
Under some circumstances, a student’s stay put placement may be the particular private school to which the student has been placed by the school district. One court explained as follows:
Altering the [private school] would require Plaintiff to change from one program to another, with different staffing, facilities and knowledge of Plaintiff’s specific disability. This disruption appears to be exactly what Congress intended to avoid through s. 1415(j).9
Under other circumstances, a student’s stay put placement may refer to the type of educational program, including the special education and related services provided therein, rather than the particular school to which a student has been placed. The 4th Circuit explained:
To the extent that a new setting replicates the educational program contemplated by the student’s original assignment and is consistent with the principles of mainstreaming and affording access to a FAPE, the goal of protecting the student’s educational placement served by the stay-put provision appears to be met. Likewise, where a change in location results in a dilution of the quality of a student’s education or a departure from the student’s LRE-compliant setting, a change in educational placement occurs.10
This 4 th Circuit decision, as well as a number of other federal court decisions, make clear that the educational impact upon the student may be considered in determining whether a student’s stay put placement is the specific school that he has been attending.11 The capacity of the particular school may also be relevant–for example, when a student advances to a grade not served by the particular school.12 In addition, notwithstanding a student’s stay put rights, the IDEA specifically allows a school district to obtain a change of placement if a hearing officer determines that maintaining a student’s current placement is substantially likely to result in injury to the student or others.13 And, it is undisputed by Dracut that an unsafe learning environment would present a student with an inappropriate placement.14 In sum, IDEA stay put principles that determine a student’s “then-current educational placement” are neither rigid nor automatic. The specific facts of the particular case guide the determination of whether a student’s specific school placement must be maintained as his or her stay put placement.
The unrebutted evidence in the instant dispute, as summarized in the Facts section of this Decision, demonstrate that Student cannot be safely maintained at Melmark. Even with significant environmental modifications, increased staffing (occasionally, up to four staff with Student), and significant isolation of Student from his peers, Student and those around him continued to be at significant risk of serious harm on a day-to-day basis. Moreover, Student’s behavior and Melmark’s consequent modifications to his program made it impossible for Student to participate in a meaningful way in an educational program with his peers, and no progress was being made on any of his IEP goals. Testimony of Gardner, Bird; exhibit M-7.
Melmark’s inability to provide a safe educational environment for Student stems, in part, from the structure of Melmark’s residential program. As discussed above in the Facts section of this Decision, Melmark is set up on a community residence model, with all students residing in what is the equivalent of houses in the community. All students are transported by van from their community residence to Melmark’s school in Andover. This model of students living together in a house in the community (where, for example, students have access to a kitchen) is not a safe environment for Student. Also, in this residential model, there is opportunity for significant interaction among the children living there. Regardless of the number of staff assigned to Student, other children would remain vulnerable unless Student were completely isolated from his peers, a situation that would compromise the educational benefits of a community-based program such as Melmark. Finally, a community residence, which is essentially a house in the community, is not constructed to withstand Student’s physical aggression towards property. In short, Student now requires a program that is more secure than Melmark has the capacity to provide. Testimony of Gardner, Bird, Gold.
Although it can be hoped that Student’s behavioral difficulties will have diminished by the time that he is discharged from his current psychiatric hospitalization at Bradley, it was apparent from Student’s July 7, 2008 discharge from Bradley that no longer being appropriate for hospitalization is not equivalent to being safe for placement at Melmark. As discussed in detail in the Facts section above, upon his July 7 th discharge from Bradley, Student’s behavior back at Melmark markedly deteriorated from what it had been prior to admission to Bradley, leading to an emergency hospitalization 11 days after discharge from Bradley. There is no basis to conclude that when Student is discharged from Bradley in the coming weeks, his behavior will be any less severe than when he was discharged from Bradley on July 7 th .
On the basis of these undisputed facts, I find that maintaining Student’s placement at Melmark would substantially likely result in serious injury to Student and others,15 and I therefore conclude that Student’s stay put placement under the IDEA can no longer be Melmark.
Dracut argues that Melmark could further increase staffing or make other adjustments to maintain safety. Dracut has offered to pay for these additions or adjustments. Dracut’s argument is entirely unsupported by the evidentiary record. The undisputed evidence is that Melmark has literally run out of options in its efforts to keep Student and others safe; and, as discussed above, Melmark’s community residence model is simply not a safe environment for a child with Student’s severe behavioral difficulties. Testimony of Gardner, Bird, Gold.
Dracut correctly points out that if Melmark is not considered Student’s stay put placement, Student may possibly be left with no educational program in the event that he is discharged from Bradley. Notwithstanding the potential difficulty of this scenario, it cannot justify a stay put placement into a program that has been demonstrated to be unsafe. Dracut knew as early as January 2008 during a Team meeting that Melmark might become an unsafe placement, and Dracut knew or should have known as of July 31, 2008 (when Melmark provided notification of emergency termination) that Melmark could no longer provide a safe educational environment for Student, thereby requiring Dracut to find a new placement as quickly as possible. In other words, Dracut has had at least six weeks to locate an alternative, appropriate residential educational placement for Student on an expedited basis. Testimony of Stone, Byers, Gardner; exhibits S-7, S-19, S-21, M-11.16
In this regard, I also note Mother’s testimony at the hearing. When pressed first by Dracut’s attorney and then by the Hearing Officer, Mother was clear in her testimony that even were Student to be discharged from Bradley with no new appropriate placement identified, she would not want her son to return to Melmark. Based upon her own knowledge of Melmark’s efforts with her son as well as her son’s aggression towards himself and others at Melmark and the resulting injuries, she testified that Melmark had done its best, that Melmark is not a safe environment for her son (and the other children if her son were placed there), and that Student should be transported to a hospital emergency room if he were discharged from Bradley without an alternative, appropriate educational placement. For these reasons, Mother declined to join Dracut’s request to the BSEA that Melmark be considered her son’s stay put placement. Testimony of Mother.
Melmark New England shall not be considered Student’s stay put placement.
By the Hearing Officer,
Dated: September 18, 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).
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).
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.
It is not disputed by Dracut that Melmark has provided appropriate notification of emergency termination pursuant to Massachusetts Department of Elementary and Secondary Education regulations.
20 USC 1400 et seq .
MGL c. 71B.
20 USC 1400(d)(1)(A). See also 20 USC 1412(a)(1)(A); MGL c. 71B, ss. 2, 3.
Schaffer v. Weast , 546 U.S. 49, 62 (2005).
20 USC § 1415(j); 34 CFR §300.518.
CP v. Leon County School Bd. Florida , 483 F.3d 1151, 1156 (11th Cir. 2007) (“provision amounts to, in effect, an automatic preliminary injunction, maintaining the status quo and ensuring that schools cannot exclude a disabled student or change his placement without complying with due process requirements”); Verhoeven v. Brunswick School Committee , 207 F.3d 1, 3, 10 (1st Cir. 1999) (preservation of the status quo ensures that the student remains in the last placement that the parents and the educational authority agreed to be appropriate).
See In Re: Northampton Public Schools , BSEA # 04-0359, 9 MSER 397 (SEA MA 2003) (stay put order issued against a private school).
Joshua A. ex rel. Jorge A. v. Rocklin Unified School Dist. , 2007 WL 2389868 ( E.D.Cal. 2007).
AW v. Fairfax County School Board , 41 IDELR 119 (4th Cir. 2004) (internal quotations omitted).
E.g., Hale v. Poplar Bluff R-1 School District, 280 F.3d 831 (8th Cir. 2002) (determination of whether there has been a change in student’s “then-current educational placement” is a “fact-specific” inquiry that considers the impact of a change of placement on student’s education); Tennessee Department of Mental Health v. Paul B ., 88 F.3d 1466 (6th Cir. 1996) (“must identify a detrimental change in the elements of an educational program in order for a chance to qualify for the stay put provision”); Sherri A.D. v. Kirby, 975 F.2d 193, 206 (5th Cir. 1992) (change in student’s stay put placement occurs only when “a fundamental change in, or elimination of, a basic element of the educational program has occurred”); DeLeon v. Susquehanna Community School District , 747 F.2d 149, 153-154 (3rd Cir. 1984) (“touchstone in interpreting section 1415 has to be whether the decision is likely to affect in some significant way the child’s learning experience”).
E.g., Ms. S ex rel. G. v. Vashon Island School District, 337 F.3d 1115, 1133-34 (9th Cir. 2003) (superseded by statute on other grounds) (when a child progresses from preschool to elementary school, from elementary school to middle school, or from middle school to high school, the stay put obligation of the school district is to provide educational services that approximate the student’s old IEP as closely as possible).
20 USC § 1415(k)(3); 34 CFR § 300.532(b).
Dracut’s closing argument. See also Lillbask v. Connecticut Department of Education , 397 F.3d 77 (2 nd Cir. 2005) (Congress did not intend to exclude from consideration any subject matter–including safety concerns–that could interfere with a disabled child’s right to receive a free appropriate public education).
Cf. 20 USC § 1415(k)(3)(B)(ii) (“hearing officer may … order a change in placement of a child with a disability to an appropriate interim alternative educational setting for not more than 45 school days if the hearing officer determines that maintaining the current placement of such child is substantially likely to result in injury to the child or to others”).
If it has not already done so, Dracut might find it useful to access resources at the Mass. Department of Elementary and Secondary Education to assist in its search for an appropriate placement for Student.