COMMONWEALTH OF MASSACHUSETTS
Bureau of Special Education Appeals
In Re: East Longmeadow Public Schools and Departrment of Education and Department of Social Services
BSEA #03-1917 and #03-1919
DECISION
This decision is issued pursuant to M.G.L. c. 71B and 30A, 20 U.S.C. 1401 et seq ., 29 U.S.C. 794, and the regulations promulgated thereunder. The parties agreed to submit the matter to the Hearing Officer for decision on documents pursuant to BSEA Rule 11 and 801 CMR 1.01 (10) (b).
ISSUE
Whether the Department of Education acted in conformity with its regulations when it determined that East Longmeadow Public Schools is fiscally and programmatically responsible for the special education of Alan and Blake1 ? 603 CMR 28.03 (4) and 603 CMR 28.02 (16).
Procedural History
Alan and Blake are in the custody of the Department of Social Services (hereinafter “DSS”). They both attend residential special education schools. On May 9, 2002, DSS filed a Request for Clarification of School District Assignment with the Department of Education (hereinafter “DOE”) for both Students. The DOE determined that East Longmeadow is the local education agency responsible for both Students. The DOE notified East Longmeadow of its decision on September 24 and 25, 2002, East Longmeadow initiated a hearing to challenge the LEA assignments on October 23, 2002. As the challenges involve siblings and substantially similar operative facts the two appeals were informally consolidated. During a conference call held on December 19, 2003, the parties agreed to submit the issue on documents2 . Initial submissions of the parties were received on January 24, 20033 . “Reply” Memoranda from all parties were received by February 15, 2003.
Summary of the Facts
Although there was a good deal of information submitted pertaining to the family history and the individual Student’s learning needs and progress, the facts upon which this decision rests are limited. Only those facts that bear directly on the issue of residence, notice, and official action are set out below:
1. Alan, BSEA #03-1917, is a fourteen year old student with special learning needs as defined by 34 CFR 300.7 and 603 CMR 28.02 (7). Neither the nature of his disabilities nor the appropriateness of his current educational placement is in dispute. Alan has been in DSS custody continuously since February, 2000. Alan’s mother continues to make educational decisions on his behalf. Alan has attended the Walden School, an approved private residential special educational program on the campus of the Learning Center in Framingham, MA, since September, 1999. (DOE-5, E.L.-10; DSS- E, A, B)
2. Blake, BSEA #03-1919, a fifteen year old special education student, is Alan’s sibling. Blake has attended the Charter School of Tampa Bay Academy in Florida since August, 1998. He was initially placed there by DSS pursuant to a voluntary placement agreement with the mother. Since November, 1999, however, DSS has had custody of Blake as a result of a CHINS petition. (DSS-A, B; E.L.-6)
3. Between March, 1997, and June, 2000, the mother lived in Natick, MA. In June, 2000, she moved to Maynard, MA where she remained until May, 2001. In May 2001, the mother moved out of state. The mother has always been involved in the Students’ education. The DSS has been aware at all times of the mother’s whereabouts. (DSS-A; I, J; E.L.-7, 12; DOE-3, 4)
4. The father has lived in East Longmeadow since February, 1998. Pursuant to a court order entered in February, 1999, and renewed in February,4 2000, the father has had no contact with the mother or the children. He has not been involved in the Students’ education, nor with the DSS. (DSS-A, I, J; DOE-3, 4; E.L. 2, 7, 12)
5. On May 29, 2001, Doreen Brooks, the DSS caseworker assigned to the family, filed a Request for Clarification of School District Assignment with the Department of Education. At that time Natick was the local education agency developing the Students’ IEPs and cost-sharing their placements with DSS. (DSS-A; E.L.-28) The clarification request listed the mother’s residence in Maynard between June, 2000 and May, 2001. The request also listed the father’s address in East Longmeadow. (DSS-I, J)
6. On July 9, 2001, the DOE issued “assigned letters” indicating that Maynard, as the mother’s community of residences between June, 2000, and May, 2001, was fiscally responsible for the Student’s out-of-district special education programming. The DOE letter stated, erroneously, that the father’s whereabouts were “unknown” and that the Students had no parent or guardian living in the Commonwealth. (E.L.-3, 4; DSS-C, D)
7. In accordance with the assignment by the DOE, Maynard developed an IEP for Alan calling for his continued residential placement at the Walden School for the period June 11, 2001 to June 11, 2002 to be cost-shared by DSS. (DSS-E)
8. An IEP for Blake for the period August, 2001 to August, 2002, was prepared by the Charter School of Tampa Bay Academy (under the heading “School District of Hillsborough County, Florida). It called for continued residential placement at the Charter School. The document does not indicate any participation in the development of the IEP by Maynard or by DSS. There is no dispute, however, that the IEP was implemented, and that the placement was funded by Maynard and DSS on a cost-shared basis. (DSS-F)
9. On May 9, 2002, Ms. Brooks submitted another Request for Clarification of School District Assignment to the DOE on behalf of both Students. The Request listed the mother’s new residence out-of-state, beginning in May, 2001. The Request noted residence information for the father identical to that submitted in May, 2001. The form recorded the father’s residence location in East Longmeadow. (E.L.-7, 12; DSS-I; DOE-3, 4)
10. On June 6, 2002, Ms. Brooks sent a certified letter to the father at his East Longmeadow address in order to verify his residence. The certified receipt was returned with the father’s signature on June 11, 2002. (DSS-G, H; E.L.-12)
11. A Team meeting was held on June 6, 2002, to develop an IEP for Alan. Representatives of the Maynard Public School, the DSS and the Walden School, as well as the mother, attended. Maynard developed an IEP for Alan’s continued residential placement at the Walden school for the period June, 2002 to June, 2003, to be cost-shared with DSS. The Parent accepted the IEP on September 5, 2002. Maynard funded its portion of the placement until the end of September, 2002, when it received notification that DOE has assigned LEA responsibility to East Longmeadow. (DSS-E; E.L.-25)
12. An IEP was prepared for Blake on August 16, 2002. The IEP, written on A School District of Hillsborough County, Florida form, call for Blake’s continued residential placement at the Charter School of Tampa Bay Academy for the period August, 2002 to August, 2003. There is no indication on the form that DSS, the mother or any Massachusetts LEA participated in a Team meeting to develop Blake’s IEP. There is no indication in the IEP of any connection to Massachusetts, although the mother’s signature appears on the document. (DSS-F; E.L.-36)
13. On September 24, 2002, the DOE issued an LEA5 assignment letter indicating that East Longmeadow, as the father’s residence, was programmatically and fiscally responsible for Alan’s special education program. (DOE-5, E.L.-10)
14. On September 25, 2002, the DOE issued an LEA assignment letter indicating that East Longmeadow, as the father’s residence, was programmatically and fiscally responsible for Blake’s special education program. (DOE-6, E.L.-12)
15. East Longmeadow did not learn of the existence of these two Students or its connection to them until it received the DOE assignment letters in late September, 2002. There is no evidence that the DSS ever contacted East Longmeadow about the Students despite its knowledge that the Students’ father lived in East Longmeadow. Similarly there is no evidence that DOE alerted East Longmeadow as to its potential responsibility for the Students prior to issuing its assignment. Nor did Maynard, or Natick for that matter, ever invite East Longmeadow to participate in educational planning for these Students. (E.L.-40, 41; DSS-A)
16. East Longmeadow filed an appeal of the DOE assignments on October 23, 2002. (E.L.-16)
Conclusions of Law
Massachusetts law allocates financial and programmatic responsibility for special education to local school districts based on residence enrollment of students with disabilities. M.G.L. c. 71B § 3. Boston v. Board of Education , 392 Mass. 788 (1984): George & Irene J. Walker Home for Children v. Town of Franklin , 416 Mass. 291 (1993). When an eligible student lives with both parents in one community identification of residence is easy. For other situations the DOE has issued standards to be used in determining an eligible student’s residence. 603 CMR § 28.03 (4).
1. Determination of Residence
The relevant and undisputed facts in this matter at the time DOE was asked to clarify the school district (s) responsible for Alan and Blake’s special education program are: The Students are in the custody of DSS; the mother lives in another state; the father lives in East Longmeadow; the Students require an out-of-district placement to receive FAPE; the Students live in and receive special education services from an approved private residential school. These facts fit squarely within 603 CMR § 28.03 (4) (b) which provides:
The parent’s school district shall have both programmatic and financial responsibility…when, in order to implement student IEPs, eligible students require an out of district placement and such students live and receive special education services at approved special education residential schools or pediatric nursing homes.
There is no other section of the residency regulations which addresses the living situations of these Students. This regulation places all educational responsibility for both Students on their “parents” school district.
The parent’s school district is defined at 603 CMR 28.02 (16) which provides, in relevant part:
(16)…[I] f the eligible student is in the care or custody of the Department of Social Services or other state agency, the parent’s school district shall be the district(s) where the parent(s) are living or were last known to be living without regard to the parent’s custody status.
Here the only Massachusetts resident parent lives in East Longmeadow. East Longmeadow argued that once the father had been permanently enjoined from contact with the mother and the Students, he ceased to b a “parent” in the commonly understood sense and therefore his residence has no bearing on the determination of LEA responsibility.6 The clear regulatory language, however, defeats such an interpretation. When a student is in state custody the custodial, visitation, or contact status of a parent is not to be used by the DOE to determine the responsible school district. In that situation only the parent(s) actual residence, which is not in dispute here, is pertinent to the assessment of LEA responsibility.
Therefore I find the DOE appropriately assigned fiscal and programmatic responsibility for Alan and Blake’s special education programs to East Longmeadow on the basis of their father’s continuing residence in that town consistent with 603 CMR 28.03 (4) (b) and 603 CMR 28.02 (16).
2. Out of State Parent
East Longmeadow argues that when the Parent with custody of the Students, the mother, moved out of state the Students’ residence remained with her and also moved out of state. In the alternative East Longmeadow argues that its responsibility as the father’s residence should be shared with the mother’s residence out-of-state pursuant to 603 CMR 28.03 (e).7 That section of the regulations provides for joint responsibility between two school districts when the mother and the father live in two different communities, and the Student lives and receives FAPE in a residential school (among other situations).
This argument, though flowing logically from the Massachusetts’ emphasis on actual parental residence, is not persuasive. First, in this instance the mother does not have custody of either Student. Both Students were committed to DSS custody prior to her relocation out of state and remain there. Second, the residency regulations explicitly address the determination of residence for students who are in DSS custody and whose parents move out-of-state:
(4) Responsibility for Students based on residency and enrollment . School districts shall be programmatically and financially responsible for eligible students based on the definitions of Resident school district, Parent’s school district, and Program school and the following standards. With the exception of students who are in the custody of a Massachusetts state agency, nothing in this regulation shall require a school district to provide special education to a student whose parents and/or guardian live outside the Commonwealth and have placed the student in an education program in the Commonwealth or who maintain contact with the student who remains in the Commonwealth.
603 CMR 28.03 (4). Emphasis in original.
Paraphrased to address the facts of this matter this regulation requires a parent’s school district to provide special education to a student in the custody of DSS even after that parent moves out of state and even if the parent maintains contact with the student. Furthermore, as noted by the DOE the child is a “ward” of Massachusetts. The United States Department of Education’s Office of Special Education (OSEP) takes the position that a child is a resident of the state he or she is a ward of. Letter to McAllister 21 IDELR 81 (1994). See also : Catlin v. Sobol , 93 F. 3d 112 (2 nd Cir. 1996).
Considering the residency regulations as a whole it is clear that once a student is in DSS custody and consequently a ward of Massachusetts, a Massachusetts school district must assume fiscal and programmatic responsibility for any necessary special education program for the student. Typically identification of the responsible school district will be based on a determination of the parents’, or parent’s, current Massachusetts residence. Where one parent has left the state, the residence of the remaining parent assumes full responsibility. Where both parents have left the state the Massachusetts community in which the last remaining parent last lived is deemed responsible. 603 CMR 28.03 (4) (f) and (g). Massachusetts regulations do not provide for participation of an out-of-state school district for a student in the custody of DSS. An exception to the general rule that a minor student’s residence follows that of the parent, the residence of a Massachusetts ward does not cross state lines. Since the residence of Alan and Blake remains in Massachusetts and residence governs responsibility, East Longmeadow’s request that the mother’s community of residence be deemed at least partly responsible for the Students’ special education programming cannot be entertained here. I note also the improbability that Massachusetts could, by administrative regulation or order, impose any kind of financial responsibility on a political subdivision of another state.
3. Notice
East Longmeadow also argues that even if it is found to be the responsible LEA due to the father’s residence, it should not be responsible for the Students’ 2002-2003 school year programs because it failed to receive notice of its responsibility until after the fiscal year began. This argument, appealing as it may be, must also fail.
A school district’s responsibility to its special education students is not, typically, contingent upon notice. The simple fact of residence triggers fiscal and programmatic responsibility. There is nothing in the residency regulations that requires a school district to receive notice of a parent’s residence within the community before assuming its IDEA obligations. School Committee of Stoneham v. Robert Antonnucci , Superior Court CA No. 92-5899 n.18. (April 26, 1996). See also: Georgetown Public Schools 8 MSER 95, (Crane 2002); Salem Public Schools , BSEA # 02-4739 (Feb. 11, 2003; Sherwood).
There are two exceptions to the general rule that a school district’s responsibility is coextensive with parental residence. The “move-in law”, M.G.L. c. 71B § 5, provides, in relevant part, that if a parent moves from one district to another on or after July 1 of any fiscal year, the former school district continues to bear fiscal responsibility for a residential placement for the remainder of that fiscal year. This statute, enacted in 1998, was clearly designed to accommodate the fiscal concerns of local communities which prepare school budgets well in advance of July 1 st each year. It permits one school district to expend previously budgeted to monies for nonresident Student and affords another school district additional time to prepare appropriate budget requests for a resident student. East Longmeadow aptly analogizes an unanticipated “move-in” to the situation at hand here, an unanticipated assignment, pointing out that the fiscal impact on the new community is indistinguishable.8 While I agree that the fiscal effects of an unplanned mid-fiscal year assignment of responsibility for students with significant educational needs is profound and worrisome and that the intent of the move-in law was to remedy the lack of notice or preparedness, I could find no pertinent equivalent of the move-in law in any other statute or regulation.. Had the legislature intended to avoid catastrophic budgetary consequences resulting from unanticipated LEA assignments it could easily have added a simple clause or two addressing that contingency in the original statute or in an amendment at any time in the past four years. That is has not done so evidences an intent to restrict application of the move-in provision to actual residential relocations. I cannot, at the administrative level, regardless of the persuasive evidence of potential harm to East Longmeadow students, extend the plain statutory language of M.G.L. c. 71 § 5 to an entirely new, and reasonably foreseeable, circumstance.
The one way in which “notice” does operate to limit East Longmeadow’s responsibility for the Students’ based on the father’s residence is found at 603 CMR 28.03 (4) (h). When a school district is assigned responsibility by the DOE based on a request and information provided by another agency9 , the assigned community assumes responsibility when it actually receives notice from the DOE. Until DOE notification the former community of residence maintains fiscal and programmatic responsibility.
…Upon notification of responsibility for provision of special education to a child under this paragraph, the school district(s) shall immediately begin to provide such services in accordance with the requirements of these regulations. Until such notification, the school district that had been responsible for providing special education to such child under these regulations shall continue to be responsible.
603 CMR 28.03 (4) (h).
Applying the unambiguous regulatory language to the facts of this matter means that East Longmeadow became responsible, fiscally and programmatically, for Alan and Blake’s special education placements on or around September 30, 2002, when it received actual notice of the DOE assignment.10 Until the new assignment, the former assigned community, Maynard, continued to be responsible for the Students’ special education programming. The facts show that Maynard fulfilled its responsibilities by convening team meetings, developing and/or approving IEPs and cost-sharing the residential placements with the DSS until the end of September, 2002.11 East Longmeadow argues that the DOE assignment has retroactive “effect” as it would require East Longmeadow to assume responsibilities for the 2002-2003 school year for which it had not planned. East Longmeadow reasons that since the assignment and residence regulations do not have retroactivity provisions, any application of them that disturbs settled financial plans for a school year constitutes illegal retroactivity. I disagree.
School funding is based on current residence. The only exception to this general rule is set cut at M.G.L. c. 71B § 5 when a student attends a private day or residential school and the parents move after July 1 st . There are no statutory exceptions for other, potentially equally costly, unanticipated budget challenges; e.g.: a homebound student requiring multiple, round the clock services whose parents move into town after July 1 st ; a resident student precipitously discharged from the custody of a state agency in September who requires an intensive, twenty four hour program; a resident student newly eligible as a result of traumatic injury placed in a costly out-ot-district program, among others. Neither unanticipated expense, nor lack of notice, nor lack of participation in original placement relieves a school district from its obligation under federal and state laws to provide and fund special education services for its resident students.
4. Responsibility of DSS
East Longmeadow argues that DSS, as the Students’ custodian, ignored its obligations under federal and state law to ensure that all interested entities participated in the development of the Students’ IEPs by: failing to provide East Longmeadow with proper notice of its potential responsibility for the Students; placing the Students unilaterally in inappropriate and unduly restrictive educational programs; violating its own regulations set out at 110 CMR 4.00 et seq . and 110 CMR 7.00 et seq .; and by not complying with the Interstate Compact on the Placement of Children. (M.G.L. c.119). East Longmeadow relies on dicta in Mohawk Trail Regional School District v. Shaun D ., 35 F. Supp. 34, 37 (D. Mass. 1999) to support its contention that DSS may be held financially responsible for a unilateral placement made without proper notice to and involvement with the responsible LEA.
In Mohawk a school district challenged the BSEA finding that DSS’s unilateral residential placement of a student, with the consent of the student’s parents but without notice to the school, was the least restrictive, educationally appropriate program for the student. Affirming the BSEA finding on the facts the court noted that DSS, as the state placing agency, was subject to the IDEA as well as its own substitute care regulations, which require consultation with the appropriate school district prior to placement. Failure to adhere to the procedural requirements of the IDEA could in some instances, the court opined, cause DSS to bear the financial risk of a unilateral placement in the same manner as parents do. School Committee of Town of Burlington v. Massachusetts Department of Education , 471 U.S. 359; 105 S. Ct. 1996 (1985)
Here, East Longmeadow points out that despite knowledge of the father’s presence in East Longmeadow since at least 1999, DSS never alerted East Longmeadow to its potential responsibility for developing appropriate special education programs for the Students. Therefore, East Longmeadow asserts, DSS should carry the cost of the Students’ placements for the 2002-2003 school year. I think the circumstances the Mohawk court may have contemplated do not exist here. First, DSS did, over the course of the last three years, involve the previously assigned school districts, Natick and Maynard, in the planning, development and funding of both Students’ IEPs. There is no history of long-term or egregious neglect of the school systems deemed to be responsible for the Students. As the Students’ educational placements were made and continued in cooperation with the then responsible school district, there is no retroactive procedural harm either to the Students or to East Longmeadow. To the extent East Longmeadow can demonstrate “harm” from its ignorance of the father’s residence, such “harm” would only begin on the date it was assigned as the LEA responsible for the Students. At that time not only did its financial liability for the educational portion of the Students’ placements arise, but so also did East Longmeadow’s capacity, even its obligation, to explore less restrictive or more appropriate educational alternatives for the Students. That it did not do so is not the fault of DSS. Second, any potential “harm” to East Longmeadow resulting from the late notice of its responsibility for these Students is not solely, perhaps not even primarily, attributable to DSS as it appears from the record that the father’s address was known to both previously assigned school districts and to the DOE well in advance of September, 2002. Third, the IDEA’s procedural protections run to the Student, or at a minimum, run for the benefit of the Student. Where, as here, there is no demonstrable harm flowing from any special education programming,12 it is not clear that political subdivisions would have valid procedural claims against one another under the IDEA. Finally, I am not persuaded that state statutes and regulations permitting the BSEA to require the participation of DSS in hearings to determine the appropriate special education program for a student13 authorize a Hearing Officer to determine, in an action solely to recover money, whether the actions of DSS conform to its own regulations or to the Interstate Compact. Therefore I do not reach East Longmeadow’s argument.
5. Equities
Finally, East Longmeadow contends that, on balance, the equities of this matter require a finding that it is not responsible for any portion of the Students’ 2002-2003 special education placements because DSS erred in its unilateral placement of the Students and DOE erred in its mid-fiscal year designation of LEA responsibility. These actions taken together, East Longmeadow maintains, violate Alan and Blake’s IDEA protections and result in significant harm to other students in the East Longmeadow school system. There is no corresponding harm to either DSS or DOE should their positions be rejected by the BSEA.
The arguments of East Longmeadow are compelling, but ultimately fruitless. A Bureau of Special Education Appeals Hearing Officer has some latitude to assess equities and to craft equitable solutions to some problems that bear directly on an individual student’s educational program. I am not convinced that a Hearing Officer has similar power in a case such as this where it is the administrative parsing of fiscal responsibility among state agencies that is at issue. There is no showing here of any past or potential impact on the delivery of appropriate special education services to the students which might trigger the application of equitable principles. Further, the residency regulations are mechanistic rather than flexible: a school district is either responsible or it is not. Fundamentally this is a case about money, not about Alan or Blake.
While assignment of fiscal responsibility for intensive special education programming based on parental residence may be inequitable, illogical, unfair or unwise in some instances, it is, nonetheless, the funding mechanism chosen by the Massachusetts legislature. Allocating financial responsibility based on parental residence is not irrational on its face and serves the purpose of ensuring that each disabled student has a “home” school district which will carry out its IDEA duties on the student’s behalf. Catlin v. Sobol , 93 F.3 rd 112(2 nd Cir.1996). The Department of Education’s residency regulations are facially neutral and do not, in themselves, violate the IDEA. Nor do they necessarily operate to deprive individual disabled students access to the full gamut of procedural and substantive guarantees under the IDEA and M.G.L. c. 71B. Therefore, there is no basis upon which a hearing officer could grant the relief requested by East Longmeadow. The remedy sought by East Longmeadow lies with the legislature.
Order
The Department of Education’s September 24, 2002, determination that East Longmeadow is the LEA responsible for Alan’s special education program is supported by a preponderance of the evidence in the record and is consistent with the Department of Education’s residency regulations and governing statutes. Therefore that determination is confirmed. (BSEA #03-1917)
The Department of Education’s September 25, 2002, determination that East Longmeadow is the LEA responsible for Blake’s special education program is supported by a preponderance of the evidence in the record and is consistent with the Department of Education’s residency regulations and governing statutes. Therefore that determination is confirmed. (BSEA #03-1917)
Lindsay Byrne, Hearing Officer
1
Alan and Blake are pseudonyms selected by the Hearing Officer for use in publicly available documents concerning this matter in order to protect the privacy of the Students.
2
Although not formally joined pursuant to BSEA Rule 1F, the Department of Social Service is participating as a necessary party in this matter due to its status as the legal custodian of the Students.
3
Although titled a Motion for Summary Judgment, the submissions of DSS acknowledges the existence of significant areas of factual disagreement. Therefore that submission is more properly viewed as a memorandum and argument in support of its position that the DOE’s LEA assignment is correct and valid. To the extent that action on the outstanding Motion is warranted, it is DENIED .
4
Although the parties represented that the parents had divorced in 2000, and that the mother had been awarded sole custody of the Students at that time, there is no supporting documentation in the record. The only court order concerning custody in the record is the February, 1999, Abuse Prevention Order, which lapsed in July, 2000. (E.L.-2)
5
“LEA” is a widely used acronym for “local educational agency.” Here it is synonymous with responsible community of residence.
6
There is no evidence of current custody or parental contact orders. See footnote 4.
7
Where a student is in a living situation described in § 28.03 (4) (a)(1), (b) or (d) and the student’s father and mother live in two different school districts, such school districts shall be jointly responsible for fulfilling the requirements of these regulations except if the parents are divorced or separated and the father or mother has sole physical custody. 603 CMR 28.03 (e).
8
See E.L. Ex.40,41, for a compelling recitation of the fiscal impact of these assignments on the East Longmeadow school system.
9
603 CMR 28.03 (4) (f) permits an agency to request the DOE to assign a school district to act as the parent’s district (for the purpose of M.G.L. c. 71 § 3 and 603 CMR 28.02 (16).) When the parents’ residence or history is in dispute. Here, DSS did request such an assignment in May, 2002, and the DOE issued assignment letters in September, 2002. (Ex.EL- 7,10,12;DSS-1; DOE-3,4,5,6.)
10
The actual date of receipt of notice is not established in the record. The assignment letters were dated September 24 and 25, 2002. There is no dispute that the letters were received by East Longmeadow within a reasonable time thereafter.
11
Due to the explicit regulatory language concerning school district responsibilities in the DOE assignment process, along with the uncertainty underlying a request for an assignment, LEA assignments are not considered to be retroactive. Had retroactivity been an issue, Maynard, as the previously assigned LEA, should properly have participated in this appeal.
12
There is no evidence in the record before me that could support a finding of substantive educational harm to either Student.
13
603 CMR 28.08(3).