George and Boston Public Schools – BSEA #04-2506



<br /> George and Boston Public Schools – BSEA #04-2506<br />

COMMONWEALTH OF MASSACHUSETTS

BUREAU OF SPECIAL EDUCATION APPEALS

In Re: George1 and Boston Public Schools BSEA # 04-2506

RULING ON MOTION FOR PARTIAL SUMMARY DECISION

INTRODUCTION

This Ruling is issued pursuant to 20 USC 1400 et seq . (Individuals with Disabilities Education Act), 29 USC 794 (Section 504 of the Rehabilitation Act), MGL chs. 30A (state administrative procedure act) and 71B (state special education law), and the regulations promulgated under said statutes.

On May 6, 2004, Parent filed a Motion for Partial Summary Judgment Decision ( Motion ). On June 4, 2004, Boston Public Schools (Boston) filed an opposition; on June 25, 2004, Parent filed a response to Boston’s opposition; and on July 21, 2004, Boston filed a further response.2 This matter is decided without oral argument.

In addition to their written arguments, the parties submitted exhibits. Parent filed fourteen exhibits (marked Exhibit P-1, etc.). Boston moved to strike Parent’s final two exhibits (P-13, P-14). Pursuant to a separate ruling, I allowed Boston’s motion to strike. Boston filed two exhibits (marked as Exhibits S-1 and S-2). For purposes of this Ruling, I therefore consider Exhibits P-1 through P-12, and Exhibits S-1 and S-2.

The Executive Office of Administration and Finance adjudicatory rules of practice and procedure, applicable to BSEA proceedings, allow a party to file a motion for summary decision when the party is of the opinion that there is no genuine issue of fact relating to all or part of a claim or defense, and that the party is entitled to prevail as a matter of law.3

Parent’s Motion and the parties’ written arguments and exhibits reveal no dispute as to any material fact. I therefore consider whether Parent is entitled to judgment as a matter of law.

ISSUES

The issues for resolution, as identified by Parent through her Motion , are as follows:

1. Whether Boston violated provisions of state and federal special education law by failing to ensure that Student’s individualized education program (IEP) Team determine his specific placement.

2. Whether Boston violated provisions of state and federal special education law by allowing Boston employees who are not members of the IEP Team to determine his specific placement.

FACTS

The relevant facts are not in dispute.

1. Student is a six-year-old boy living in Boston. He is diagnosed with Pervasive Developmental Disorder. Beginning in the 2001-2002 school year, pursuant to an individualized education program (IEP) accepted by Parent, Student attended a substantially separate classroom for autistic students at the Higginson School. Exhibit P-11, pars. 1, 2, 3 (Parent’s affidavit); Boston’s Opposition to Parent’s Motion for Partial Summary Judgment Decision , pages 1, 2.

2. During an October 15, 2002 IEP Team meeting, Parent told the other Team members that she believed her son was no longer benefiting from his class at the Higginson School and that he needed a more challenging placement. Exhibit P-11, par. 5 (Parent’s affidavit).

3. A Boston report (entitled “Boston Public Schools Home Training Report”) prepared for the October 15, 2002 IEP Team meeting, stated that Student “is making progress in all areas targeted” and references a recent “comprehensive evaluation” demonstrating “remarkable progress in the last year of the ABA program.” The report concluded that Student’s current placement at the Higginson School “does not appear to be the right fit”. The report recommended a change in placement as the “best option for [Student] at this time.” Exhibit P-4 (Boston’s Home Training Report).

4. The November 25, 2002 IEP, generated as a result of the October 15, 2002 Team meeting, continued to assign Student to the Higginson School, and Student continued to attend the substantially separate classroom at the Higginson School. Parent rejected this IEP in full on December 4, 2002. Exhibit P-5, pages 8.2 and 10 (IEP).

5. Later in December 2002, Boston sought Parent’s consent to re-evaluate Student, and Parent agreed. Exhibit P-11, par. 8 (Parent’s affidavit). Boston’s evaluations, completed by the end of March 2003, included a psychological report, a speech and language report and a report by the ABA therapist. All three of these evaluations indicated that Student would benefit from a change in his placement at the Higginson School. Exhibits P-7, page 2 (Boston’s psychological report); P-8, pages 3-4 (Boston’s speech and language report); P-9 (report of ABA therapist).

6. The IEP Team met on April 1, 2003 to consider these evaluations. The April 8, 2003 IEP, generated as a result of the meeting, indicated that Student’s placement should be changed in order for him to continue to make educational progress. The IEP provided, in relevant part:

Based on the assessments presented, it is clear that [Student] needs a more challenging academic situation. He is presently the highest functioning student in his class in all areas. To continue to make progress, [Student] would benefit from a class where the students are “higher functioning” and the behaviors are more age-appropriate.

Exhibit P-10, page 1 (IEP). Parent stated in her affidavit, and it has not been disputed by Boston, that there was consensus at the April 1, 2003 Team meeting that Student needed a new placement. Exhibit P-11, par. 12.

7. When it met on April 1, 2003, the IEP Team did not determine a new school placement for Student, and the place on the April 8, 2003 IEP where Student’s assigned school is to be indicated was left blank. Exhibit P-10, page 10 (IEP).

8. In April 2003, a Boston staff person advised Parent that she would contact Parent with the name of Student’s new school placement after she contacted the Boston administration to identify what the new placement would be. On many occasions during the remainder of the 2002-2003 school year and again in the beginning of the 2003-2004 school year, Parent sought unsuccessfully to find out (from Boston) Student’s new placement. Exhibit P-11, pars. 15-22 (Parent’s affidavit).

9. During this time, Student continued to attend the substantially separate classroom at the Higginson School. Exhibit P-11, pars. 18, 21 (Parent’s affidavit).

10. On December 11, 2003, Parent (through her attorneys at the Massachusetts Advocates for Children) filed with the Bureau of Special Education Appeals (BSEA) a Request for Hearing seeking, among other relief, an order that Boston propose a new placement for Student consistent with the recommendations of Student’s IEP Team. The Request for Hearing also sought to allow Parent to observe three alternative Boston placements, one of which was the Jackson Mann School.

11. In January 2004, Boston verbally advised Parent that it had decided to propose placing Student in a substantially separate classroom at the Jackson Mann School. Parent observed this proposed placement, as well as two other potential placements. In March 2004, Student began attending the substantially separate classroom at the Jackson Mann School. Exhibit P-11, par. 24 (Parent’s affidavit).

12. Within the Boston Public Schools system, there are approximately 12,000 special education students. Boston conducts approximately 16,000 IEP Team meetings for special education students throughout the year. On any given day, there may be from 85 to 100 Team meetings occurring simultaneously throughout the school district. Exhibit S-1, pars. 2, 3, 4 (affidavit of Jane Sullivan, Boston’s Director of Special Education Services and United Operations).

13. Boston utilizes the assistance of an Assignment Unit to manage the availability of specific seats located throughout the school district. The role of the Assignment Unit is to identify school locations in which an IEP Team’s “placement determination” can be implemented. The Assignment Unit and its staff are not involved in any Team meetings. The Assignment Unit relies upon the IEP generated by the Team, and its recommendations for services and placement to identify a school location. The Assignment Unit does not change the “placement” identified by the IEP Team. Exhibit S-1, pars. 6, 7, 8, 9, 10 (Sullivan’s affidavit).

DISCUSSION

A. Overview

Student is an individual with a disability, falling within the purview of the Individuals with Disabilities Education Act4 and the state special education statute.5 As such, Boston is required to provide Student with a free appropriate public education (FAPE).6 Neither his eligibility status nor his entitlement to FAPE is in dispute.

This is a dispute as to whether Boston violated Student’s rights under special education law and regulation by determining administratively (without participation of Parent or the IEP Team) Student’s placement at the Jackson Mann School. Through this individual dispute, Parent has also questioned, at least indirectly, Boston’s general school assignment practices. In this Ruling, I have sought to provide a comprehensive discussion of all judicial decisions, laws, regulations and guidelines relevant to the legal issue in contention.

I first consider (in part B below) the floor of procedural protections provided by the federal special education law (IDEA). I next consider (in part C below) what, if any, additional procedural protections are set forth within Massachusetts special education law and regulations.

I conclude (in part D below) that by not allowing Parent to participate in its school placement decision-making process, Boston violated the IDEA, and that by making its school placement decision separate and apart from the IEP Team process, Boston violated Massachusetts regulations.

Through her Motion for Partial Summary Decision , Parent has not sought any relief beyond a ruling on the above-described issues, which pertain to Parent’s claims for compensatory education. Through a written status report, the parties are to advise me regarding the need for any further BSEA proceedings to bring final resolution to Parent’s claims.

B. Federal Procedural Protections

1. Statute and Regulations .

The principal vehicle through which parents participate in decision-making regarding their son or daughter’s special education is the IEP Team. It is this group of people which develops the IEP — a written statement that includes the special education and related services to be provided to the student, as well as “the anticipated frequency, location , and duration of those services and modifications”.7 Parents are members of the IEP Team.8

In addition to this IEP process, the IDEA requires that parents be “members of any group that makes decisions on the educational placement of their child.”9

The federal Department of Education (DOE) takes the position that the word “location”, as used within the above-quoted language regarding the IEP, refers to the general type of location or environment rather than the specific site or actual location of the services.10 It follows that once the general type of location is decided within the IEP Team meeting, the separate decision-making process regarding a student’s “educational placement” (which parents must be a part of) would determine the more specific location where the services are actually to be provided.

For these reasons, I find that the statute (and accompanying regulations) indicate, on their face, that parents are entitled to have an opportunity to be members of the group that decides the actual location of their son’s or daughter’s special education and related services.

2. Factors involved in making a placement decision .

Although declining to define the phrase “educational placement” (as used in the above-quoted language from the IDEA giving parents the right of participation ), the federal DOE has explained that the meaning of this phrase should be determined from the “factors involved in making a placement decision.”11

The factors to be considered in making a placement decision, as set forth within the federal regulations, include that a student’s placement must be “as close as possible to the child’s home” and “[u]nless the IEP of a child with a disability requires some other arrangement, the child is educated in the school that he or she would attend if nondisabled”.12

The inquiry necessary to consider these factors would require that the placement decision-making process take into consideration the actual school or facility that the student would attend.13

The federal DOE has further explained that the placement decision, which parents must be a part of, is to consider whatever placement options are available to a child:

With respect to placement, if parents are to be meaningfully involved in the placement decision for their child it is necessary that they understand the various placement options. It is implicit in the requirement that parents be ensured the opportunity to be members of any group making the placement decision, that whatever placement options are available to a child will be fully discussed and analyzed at placement meetings, allowing input from all the participants.14

It seems likely that DOE intends this process to include consideration of specific schools, as compared to consideration of more general types of placement settings.

This analysis supports the conclusion that the educational placement decision-making process, within which parents are entitled to participate, is to consider the actual location of the student’s special education services, including consideration of specific school(s).

3. “Stay Put” Judicial Decisions .

I am aware of no judicial decisions directly on point. However, the phrase “educational placement” (which is used within the above-discussed statute giving parents the right of participation) appears at other places within the IDEA and its implementing regulations.

The most heavily litigated area relative to the meaning of the phrase “educational placement” appears to be the so-called “stay-put” protections which provide that “during the pendency of any [due process] proceedings . . . the child shall remain in the then-current educational placement of such child” unless all parties agree otherwise.15

Boston correctly points out that several courts have concluded that a change of location (for example, from one school to another) does not constitute a change in “educational placement”.16

The decisions concluding that a change of location does not trigger a change in educational placement often address the situation where a change of location of services was precipitated by fiscal reasons (for example, a school closing) or other reasons unrelated to the individual student. Understandably, the courts have been reluctant to conclude that a student’s “stay put” rights preclude the closing of a school, particularly where the student will receive substantially the same special education services at another location; and therefore the courts, within this context, have typically concluded that “educational placement” is not equivalent to the particular location or school that the student is attending. However, when the context changes to expulsion, the courts have generally found that a student’s “stay put” rights preclude his/her being moved to a different school.

The 8 th Circuit Court of Appeals explained:

A transfer to a different school building for fiscal or other reasons unrelated to the disabled child has generally not been deemed a change in placement, whereas an expulsion from school or some other change in location made on account of the disabled child or his behavior has usually been deemed a change in educational placement that violates the stay-put provision if made unilaterally.17

As a result, one can find “stay put” cases whose conclusions support each party’s position in the instant dispute. However, as one moves beyond the final conclusions of these decisions and considers their reasoning, one finds that a student’s rights relative to “educational placement” turn on the question of whether the educational placement decision impacts substantively upon the student’s educational services. For example, the 4 th Circuit recently reviewed a number of judicial “stay put” decisions and noted the importance of considering the change in placement in terms of its impact on FAPE, on serving the student in the least restrictive environment, and on the quality of the student’s educational services:

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 .18

Similar to the 4 th Circuit’s approach, the 3 rd Circuit considered to be determinative whether the student’s learning experience would be affected “in some significant way”,19 the 5 th Circuit considered to be determinative whether there has been a fundamental change in a basic element of the educational program,20 the 6 th Circuit considered to be determinative whether there has been a “detrimental change” to student’s educational program,21 and the 8 th Circuit considered to be determinative the “impact” of the change in placement on the student’s education.22

I conclude from the “stay put” cases that, when a decision regarding the location of services would impact significantly upon a student’s education, then the location of student’s services falls within the phrase “educational placement”, as this phrase is used within the IDEA.23 As discussed above in part B1 of this Ruling, parents have the right to be members of any group that makes decisions regarding the “educational placement” of their child.

4. Role of parents regarding educational decision-making .

The purpose of a statute informs its meaning.24 The United States Supreme Court has explained that the role of parents in educational decision-making is a central purpose of the federal special education statute (IDEA).

In Rowley , the Court first noted the importance of parental participation in educational decision-making:

It seems to us no exaggeration to say that Congress placed every bit as much emphasis upon compliance with procedures giving parents and guardians a large measure of participation at every stage of the administrative process, see, e. g., §§ 1415(a)-(d), as it did upon the measurement of the resulting IEP against a substantive standard.25

In a subsequent decision, the Court explained that these procedural safeguards serve the purpose of “guarantee[ing] parents both an opportunity for meaningful input into all decisions affecting their child’s education and the right to seek review of any decisions they think inappropriate.”26

I find that the Supreme Court’s understanding of the role of parents supports the conclusion that parents have a right to participate in the decision as to the specific location where student will actually receive his/her special education services if this decision impacts upon the student’s education.

5. White v. Ascension .

Boston seeks to rely upon the Fifth Circuit’s decision in White v. Ascension which discusses the authority of a school district to determine the school site. The context of this decision is a dispute over whether the school district has properly implemented the regulatory requirements that (1) the child’s placement is determined at least annually, is based on the child’s IEP, and is as close as possible to the child’s home (34 C.F.R. § 300.552(b)); and (2) unless the IEP requires some other arrangement, the child is educated in the school that he or she would attend if not disabled (34 C.F.R. § 300.552(c)).27

The Court questioned, at the outset, the role of parents in determining the site of a student’s educational services: “that parents must be involved in determining ‘educational placement’ does not necessarily mean they must be involved in site selection.” However, the Court did not actually decide the scope of a parent’s rights to participate in the decision regarding the location of services. Instead, the court assumed “arguendo that the regulations contemplate a parental right to provide input into the location of services”.28

The Court’s principal concern appeared to be that parents not be allowed to dictate that their son or daughter be educated in a particular school.29 This concern is not inconsistent with the principle that parents have the right to participate in decision-making regarding the identity of student’s school.

The distinction between parental participation within a decision-making process and the ultimate right of the school district to decide between two or more appropriate choices is identical to what happens with respect to the IEP Team when it considers, and sometimes may disagree, regarding two or more special education or related services. As with the placement decision-making process, the clearly established right of parental participation within the decision-making process of the IEP Team does not, ultimately, preclude the school district members of the Team from disagreeing with the parents’ preferred choice and selecting another service which is appropriate.30

For these reasons, I am not persuaded that the White decision supports Boston’s position.

6. OSEP letters .

The parties seek support for their positions through letters from the federal Office of Special Education Programs (OSEP). I am aware of two relevant OSEP letters. For the following reasons I do not find these letters helpful.

In its 1994 Letter to Fisher , OSEP explained that the school or facility must be determined by the placement team, which includes parents:

The placement team, (the M-team in Tennessee), must select a location, i.e., school or facility that the child would attend if not disabled, if appropriate, or another school as close as possible to the child’s home, that is consistent with the student’s IEP and the option on the continuum selected to implement the student’s IEP. It is these three components—the education program set out in the student’s IEP, the option on the continuum in which the student’s IEP is to be implemented, and school or facility selected to implement the student’s IEP —that comprise a placement decision under Part B.31

This language is clear that, in OSEP’s opinion, it is the placement team (within which the parents participate) determines the particular school or facility which the student is to attend, rather than simply the general type of educational placement. However, in a subsequent letter, OSEP used language which may indicate that it has changed its mind:
if the public agency, for example, has two or more equally appropriate locations that meet the child’s special education and related services needs, the assignment of a particular school or classroom may be an administrative determination, provided that determination is consistent with the placement team’s decision.32

From these letters, it is not possible to come to any clear conclusion regarding OSEP’s opinion. The letters do not provide any analysis of the issue from which one may judge the appropriateness of their conclusions, nor is any explanation given for the apparent inconsistency between the two letters. I therefore do not rely on the OSEP letters.

7. Conclusion .

Federal law requires that parents be allowed to participate in the decision-making process regarding a student’s “educational placement”. The plain meaning33 of the federal statute and regulations is that the term “educational placement” includes the specific location where Student’s special education services are actually to be provided (for example, a particular school).

The federal circuit court decisions regarding “stay put” and the US Supreme Court decisions regarding the role of parents generally in educational decision-making support the conclusion that parents must be allowed to participate in a school district’s decision regarding the actual location of special education services when that decision will impact significantly upon the student’s education.

C. Massachusetts Procedural Protections

I now turn to Massachusetts special education law and regulations.

I note at the outset that the federal statutory and regulatory scheme, as discussed above, permits a state to assign to the IEP Team the responsibility to determine a student’s educational placement.34 As will be discussed below, this is what Massachusetts has done.

I also note the well-settled principle that federal special education law is a floor of procedural and substantive protections, upon which a state may add to or go beyond through its own statute and regulations.35 Therefore, even if I had determined that the federal standards did not provide for the placement team to determine the actual location of a student’s services, Massachusetts could provide this additional procedural protection to parents.

1. IEP Team determination of specific placement and specific program setting .

The Massachusetts special education regulations give the IEP Team the responsibility to determine a student’s placement:

Determination of placement. At the Team meeting, after the IEP has been fully developed, the Team shall determine the appropriate placement to deliver the services on the student’s IEP.36

The phrase “appropriate placement” is not defined within the regulations. However, the regulations add clarification by later stating that the IEP Team “shall determine the specific placement ”37 and that the IEP Team’s placement decision will include the “ specific program setting in which services will be provided”.38

These phrases require a specific (as compared to a more general) placement determination by the IEP Team. I interpret this regulatory language to mean that the placement determination may include the particular school where the student will receive his or her special education services.

This interpretation is borne out by contrasting the above regulatory language regarding the IEP Team with the regulatory language used with respect to persons assessing a student. In contrast to the role of the IEP Team in determining a student’s “specific placement” and “specific program setting”, the role of the school district’s assessors and the role of independent evaluators are to “recommend appropriate types of placements ”.39 The regulations then state specifically that the assessors/evaluators “shall not recommend specific classrooms or schools .”40

This comparison of regulatory language indicates that when the drafters intended that there be no determination of a specific school, they use the phrase “types of placements”, in contrast to the phrase “specific placement” or “specific program setting”. The language comparison also indicates that when the drafters intended that specific schools not be considered, the regulations make this explicit.

The history of the regulations further clarifies the intent of the drafters regarding the use of the phrase “specific program setting” as compared to more general phrases such as “type of placement” or “type of setting”.

In March 2000, DOE promulgated regulations to take effect in September 2000. These regulations described the placement decision of the IEP Team as determining the “type of placement” in which the student would be placed. The regulations further stated that the school district was to determine the school at which the student’s services would be delivered and that the IEP Team was not to determine the student’s school. In other words, as in the current regulatory language (discussed above) regarding school assessors and independent evaluators, the March 2000 regulations directed the IEP Team to consider the general type of setting or placement but not the specific school.41

Several months after DOE promulgated its regulations in March 2000, the Massachusetts legislature enacted legislation which required DOE to return to its previous regulatory requirements regarding placement decisions. The relevant statutory language was:

The board of education shall continue in effect and enforce the following regulations in effect on January 1, 1999, promulgated pursuant to ch. 71B of the General Laws: regulations requiring the Individualized Education Plan Team to decide the specific placement necessary to meet the unique needs of a child with a disability, including but not limited to 603 CMR 28.322.42

In response to this legislative directive, DOE promulgated revised emergency regulations effective September 29, 2000 and then promulgated the current regulations effective January 1, 2001.

The emergency and current regulations changed the responsibility of the IEP Team. Under these regulations (as discussed above), instead of determining the “type of placement”, the IEP Team is now to determine the “specific program setting”. The emergency and current regulations also deleted the language stating that the school district was to determine the particular classroom or school, and deleted the language stating that the IEP Team was not to determine the student’s particular classroom or school. In contrast, as discussed above, the current regulations direct assessors/evaluators to consider “types of placements” and explicitly preclude them from recommending specific schools.

This analysis of the regulatory language, within the context of the regulatory history, makes clear that the IEP Team is to determine a student’s “specific placement” and “specific program setting”, and that these phrases are intended to include the particular school where the student will receive his or her special education services.43

2. Role of the IEP Team in determining placement .

The current Massachusetts special education regulations discuss in some detail the IEP

Team’s role in determining the student’s placement and, in so doing, provide further guidance. For example, the regulations provide that the IEP Team shall “determine the specific placement” for a student according to several “requirements”, including:

The decision regarding placement shall be based on the IEP, including the types of related services that are to be provided to the child, the type of settings in which those services are to be provided, the types of service providers, and the location at which the services are to be provided .44

By directing the IEP Team to determine both the “type of setting” and the “location at which the services are to be provided”, the language indicates that the IEP Team is to determine not only the more general type of placement setting, but also the particular place location where student’s educational services are to be provided.45

In addition, with respect to IEP Team meetings that consider the possibility of an out-of-district placement, the regulations require the IEP Team to identify and consider particular programs that would be appropriate for the student:

At the placement meeting, the district and the parent shall report on the investigation of in-district and out-of-district options. If an in-district program can provide the services on the IEP, such program shall be identified at the placement meeting and provided by the district; if not, the placement Team shall identify an out-of-district placement.46

Although regulatory language regarding out-of-district placements is not technically relevant to the facts of the present dispute (which involves the selection of a school within the district ), this language leave little doubt that the IEP Team can only complete its responsibilities by considering specific schools.47

Boston points to regulatory language reflecting a role for the school district regarding student’s school:

The school district shall determine specific instructional personnel and shall work jointly with the Team to arrange the specific classroom or school, in order to implement the placement decision and to assure that services begin promptly when parental consent to the IEP and placement has been received.48

It may be helpful to remember that this part of the regulations addresses placements within the school district. Inevitably, there will need to be coordination with school district personnel, who have responsibility for the particular school, in order successfully to implement the IEP Team’s placement decision. For these reasons, I find that the regulatory language requiring the IEP Team and school district personnel to “work jointly . . . to arrange” for the particular school for student “in order to implement the placement decision” is entirely consistent with the decision-making role of the IEP Team regarding the selection of the school.

3. DOE Administrative Advisory .

The Massachusetts Department of Education (DOE) issued an Administrative Advisory SPED 2001-5: Updating of IEP Process Guide and IEP Form and Notices , dated June 11, 2001 ( Administrative Advisory ), in order to clarify school district responsibility regarding the development of the IEP and placement decision .

The Administrative Advisory provides, in relevant part, as follows:

2. Educational Placement Determination and Specific Program Location(s): Educational placement (e.g., the actual location where the student will receive the services on the IEP) is determined after the Team has fully developed the IEP. The Team makes a decision regarding educational placement after appropriate services are identified to ensure that Team members select an educational placement able to deliver the IEP services. The Team must ensure that the specific program location complies with the IEP, least restrictive environment requirements, and requirements related to giving preference to approved programs and programs in Massachusetts. [Bold in original; italics supplied.]49

The first sentence, quoted above, leaves no doubt that DOE understands the term “educational placement” to mean the “actual location” where the student will receive his or her special education services. The above-quoted paragraph goes on to remind the IEP Team of its responsibilities to ensure that “the specific program location” complies with certain requirements, again leaving no doubt that DOE intends, through its regulations, for the IEP Team process to consider a student’s school or other location where the educational program will actually be provided.

Finally, I note the accompanying DOE form PL-1, entitled “Team Determination of Educational Placement” which is to be used by the IEP Team when it makes its placement decision. Consistent with the Administrative Advisory , the form requires the “specific program location” to be identified.50

4. Letter from DOE Program Quality Assurance .

Boston relies on a May 28, 2004 letter from a Supervisor within the state DOE Program Quality Assurance Service. Exhibit S-2. The letter includes two statements: that the IEP Team determined the “type of placement needed”, and that the school district complied with 603 CMR 28.05(6) (the regulations requiring the IEP Team to determine placement).

Several points may be made regarding the limited usefulness of this letter. First, the facts may be distinguished since, according to the May 28 th letter, the Team not only determined the general type of placement but also named the specific program (McKinley) which would provide the services. It is unclear whether this determination of the specific program resulted in compliance with 603 CMR 28.05(6).

Second, the relevant statements within the letter are unsupported by legal analysis. The statements are also unclear as to what meaning may be drawn from them.

Third, the letter does not purport to be the opinion of the Massachusetts DOE, nor does the letter appear to have been distributed to the public or otherwise intended, even by the author, to provide guidance generally to the public regarding these issues. The letter apparently is only the opinion of a supervisor working within a particular unit (Program Quality Assurance Service) of the DOE for the purposes of resolving an individual’s complaint regarding the Boston Public Schools. Compare, for example, the DOE Administrative Advisory discussed above in part C3 of this Ruling.

For these reasons, I find that the letter provides no authoritative or persuasive support for Boston’s position.

5. Conclusion .

Massachusetts special education regulations require that the IEP Team process include the determination of the actual location (for example, a particular school) where a student will receive his or her special education services.

D. Findings and Conclusions

The relevant facts in the present dispute may be summarized as follows. Student made significant educational progress at the Higginson School. Student continued to require a substantially separate classroom with other special needs children. However, in order for Student to continue to make educational progress, the IEP Team concluded that his educational environment needed to be changed so that he would be with higher functioning and more age-appropriate children. See Facts, pars. 3, 5, 6. Pursuant to Boston’s general practice of assigning students to particular schools through its Assignment Unit, neither Parent nor the IEP Team participated in the decision-making process relative to Student’s change of placement from the Higginson School to the Jackson Mann School. See Facts, pars. 7, 11, 13.

As discussed above in part B of this Ruling, federal law requires that parents be allowed to participate in the decision-making process regarding a student’s “educational placement” which includes the location where the student’s special education services are actually to be provided. Pursuant to federal law, Parent in the instant dispute should have been allowed to participate in Boston’s decision to place Student at the Jackson Mann School.

As noted above, the Jackson Mann School placement decision impacted significantly upon Student’s education (the change of placement was needed for Student to continue to make educational progress). Therefore, the federal circuit court decisions regarding “stay put” and the US Supreme Court decisions regarding the role of parents generally in educational decision-making (discussed above in part C) support the finding that Parent should have been allowed to participate in Boston’s placement decision regarding the Jackson Mann School.

As discussed above in part C of this Ruling, Massachusetts special education regulations require that the IEP Team process include the determination of the actual location of a student’s special education services. Pursuant to the Massachusetts regulations, in the instant dispute the IEP Team should have made the placement decision regarding the Jackson Mann School. This would have satisfied both the federal and Massachusetts requirements.

Finally, I note that pursuant to Massachusetts regulations,51 an IEP Team meeting to determine Student’s placement to a new school should have occurred no later than days after the April 1, 2003 IEP Team meeting during which it was agreed that a change of placement was necessary. Instead, in January 2004 (approximately nine months after the April 1 st Team meeting), Boston notified Parent of Student’s placement to his new school.

RULINGS ON PARENT’S MOTION

Boston violated provisions of federal special education law by determining, without participation of Parent, Student’s placement at the Jackson Mann School.

Boston violated provisions of Massachusetts special education regulations by failing to ensure that Student’s IEP Team determine Student’s placement at the Jackson Mann School.

Boston violated provisions of Massachusetts special education regulations by allowing Boston employees who are not members of the IEP Team to determine Student’s placement at the Jackson Mann School.

In order to advise the Hearing Officer regarding the need for further BSEA proceedings to bring final resolution to Parent’s claims, Parent’s attorneys shall (and Boston’s attorneys may but are not required to) provide a written status report, to be received by the Hearing Officer no later than September 13, 2004 .

By the Hearing Officer,

William Crane

Dated: July 30, 2004


1

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


2

Parent was represented by Elizabeth Yanishevsky and Julia Landau. Boston was represented by Alissa Ocasio. I note, with appreciation, the articulate and comprehensive written arguments from both parties.


3

801 CMR 1.01(7)(h).


4

20 USC 1400 et seq .


5

MGL c. 71B.


6

MGL c. 71B, ss. 1 (definition of FAPE), 2, 3. FAPE requires that the individualized education program (hereafter, IEP) be tailored to address a student’s unique needs in a way reasonably calculated to enable the student to make meaningful and effective educational progress in the least restrictive environment. For a more complete explanation of this standard and the legal authorities upon which it is based, see In re: Arlington , 37 IDELR 119, 8 MSER 187, 193-195 (SEA MA 2002).


7

20 USC 1414(d)(A)(iii) and (vi) (emphasis supplied). The implementing regulations include similar language. 34 CFR 300.347(a)(3) and (6).


8

Federal regulations provide that an IEP is a “written statement . . . that is developed . . . in a meeting in accordance with ss. 300.341-300.350.” 34 CFR 300.340(a). Sections 300.341-300.350 include requirements of participation by parents in the Team meeting at which the IEP is developed. 34 CFR 300.345.


9

20 USC 1414(f) (emphasis supplied).


10

Attachment 1 – Analysis of Comments and Changes, 64 Fed. Reg. 12594, 1 st column (March 12, 1999):

The ‘location’ of services in the context of an IEP generally refers to the type of environment that is the appropriate place for provision of the service. For example, is the related service to be provided in the child’s regular classroom or in a resource room?


11

Attachment 1 – Analysis of Comments and Changes at 64 Fed. Reg. 12606, 1 st column (March 12, 1999):

Section 300.552 addresses the meaning of educational placement by describing the factors involved in making a placement decision and explains the concept in the context of the least restrictive environment. There is no additional benefit to defining further the term educational placement at §300.500.


12

34 CFR 300.552.


13

DOE discusses the above regulatory language in its Notice of Interpretation of the regulations, further clarifying the necessity of considering the specific school that the student would attend if not disabled, as part of the placement decision. DOE explains as follows:

Even though IDEA does not mandate regular class placement for every disabled student, IDEA presumes that the first placement option considered for each disabled student by the student’s placement team, which must include the parent, is the school the child would attend if not disabled, with appropriate supplementary aids and services to facilitate such placement.

Appendix A to Part 300 – Notice of Interpretation at 64 Fed. Reg. 12471, 3 rd column (March 12, 1999).


14

Attachment 1 – Analysis of Comments and Changes at 64 Fed. Reg. 12607, 1 st column (March 12, 1999).


15

20 U.S.C. § 1415(j). See comparable regulatory language at 34 CFR 300.514.


16

E.g., Sherri A.D. v. Kirby, 975 F.2d 193, 199 n.5 and 206 (5th Cir. 1992) (“educational placement” not a place but a program of services); Weil v. Board of Elementa1y and Secondary Educ., 931 F.2d 1069, 1072 (5th Cir. 1991) (change of schools under the circumstances presented in this case not a change in “educational placement”).


17

Hale v. Poplar Bluff R-1 School District , 280 F.3d 831 (8th Cir. 2002). See also Board of Education of Community High School District No. 218 v. Illinois State Board of Education , 103 F.3d 545, 549 (7 th Cir. 1996):

Generally speaking, where expulsion is at issue, a change of school is interpreted as a change in placement. . . . Where fiscal concerns cause a student to be transferred, the courts focus not on the school, but on the child’s general educational program. This looser interpretation of placement is appropriate because the concern is not whether the school is attempting to rid itself of a disabled child or that a disabled student has been placed in an inappropriate school. . . . We accept as the outer parameters of “educational placement” that it means something more than the actual school attended by the child and something less than the child’s ultimate educational goals.


18

AW v. Fairfax County School Board , 41 IDELR 119 (4 th Cir. 2004) (emphasis supplied).


19

DeLeon v. Susquehanna Community School District , 747 F.2d 149, 153-154 (3 rd 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”).


20

Sherri A.D. v. Kirby, 975 F.2d 193, 206 (5th Cir. 1992) (change in educational placement occurs only when “a fundamental change in, or elimination of, a basic element of the educational program has occurred”);


21

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”).


22

Hale v. Poplar Bluff R-1 School District, 280 F.3d 831 (8th Cir. 2002):

The statute does not define the term “then-current educational placement,” and the District argues there was no change when it offered Jeffrey identical educational services at a different location in January 2000. Considering this a fact-specific issue, the district court reviewed the impact of the change on Jeffrey and concluded that “[m]oving the location of his services, in this case, changed the educational placement.” We agree.


23

Courts have noted that the determination of the location of a student’s special education services may be important to that student’s education. As one court explained, the physical location may impact upon (1) the educational services themselves, (2) the extent to which the student will be educated with non-disabled children, (3) opportunities for non-academic and extracurricular activities, and (4) the general level of restrictiveness of the program (along the continuum from the most restrictive to the least restrictive placement options). Henry v. School Administrative Unit # 29 , 70 F.Supp.2d 52 (DNH 1999).


24

See, e.g., Summit Inv. & Dev. Corp. v. Leroux , 69 F.3d 608, 610 (1st Cir. 1995) (“plain meaning of the statutory language, as derived from the whole of the statute, including its overall policy and purpose, controls”).


25

Board of Education of Hendrick Hudson Central School District v. Rowley , 458 U.S. 176, 205-206 (1982).


26

Honig v. Doe, 484 US 305, 311-12 (1987); see also Burlington School Committee v. Mass. Dept. of Ed ., 471 US 359, 368 (1984).


27

White v. Ascension Parish School Board , 343 F.3d 373 (5 th Cir. 2003).


28

Id. at 379-380.


29

Id. at 380:

To accept the [parents’] view of “input” would grant parents a veto power over IEP teams’ site selection decisions. . . . The right to provide meaningful input is simply not the right to dictate an outcome and obviously cannot be measured by such.


30

The United States Department of Education addressed this issue by first explaining the role of the parents to participate in decision-making regarding the IEP: “The parents of a child with a disability are expected to be equal participants along with school personnel, in developing, reviewing, and revising the IEP for their child. This is an active role in which the parents . . . join with the other participants in deciding . . . what services the agency will provide to the child and in what setting.” Appendix A to Part 300 – Notice of Interpretation, 48 Fed. Reg. 12473 (first column) (March 12, 1999). See also, e.g., Douglas W. v .Greenfield Public Schools, 164 F.Supp. 2d 157, 161
(Mass. 2001) (“Parental participation in the development of the IEP is essential to its validity.”).

DOE further explained, however, that the parents may not dictate, through this process, what services are to be
provided to student:

The IEP team should work toward consensus, but the public agency has ultimate responsibility to ensure that the IEP includes the services that the child needs in order to receive FAPE. It is not appropriate to make IEP decisions based upon a majority “vote.” If the team cannot reach consensus, the public agency must provide the parents with prior written notice of the agency’s proposals or refusals, or both, regarding the child’s educational program, and the parents have the right to seek resolution of any disagreements by
initiating an impartial due process hearing. . . .

Appendix A to Part 300 – Notice of Interpretation, 64 Fed. Reg. 12473 (March 12, 1999) (3 rd column). See also,
e.g., GD v. Westmoreland School District , 930 F.2d 942 (1 st Cir. 1991) (“FAPE may not be the only appropriate choice, or the choice of certain selected experts, or the child’s parents’ first choice, or even the best choice”).


31

Letter to Fisher , Office of Special Education Programs, 21 IDELR 992 (July 6, 1994) (emphasis supplied).


32

Letter to Veasey , 37 IDELR 10 (November 26, 2001).


33

See Rolland v. Romney , 318 F.3d 42, 48 (1 st Cir. 2003) (“As always, the plain meaning of the statutory language, as derived from the whole of the statute, including its overall policy and purpose, controls.”).


34

See A Guide to the Individualized Education Program , Office of Special Education and Rehabilitative Services, U.S. Department of Education, page 12 (July 2000) (“In some states, the IEP team serves as the group making the placement decision.”).


35

See, e.g., Town of Burlington v. Department of Education , 736 F.2d 773, 792 (1 st Cir. 1984) (a state is “free to exceed, both substantively and procedurally, the protection and services to be provided to its disabled children”).


36

603 CMR 28.05(6) (emphasis supplied).


37

603 CMR 28.06(2) (“The Team shall determine if the student shall be served in an in-district placement or an out-of-district placement and shall determine the specific placement according to the following requirements:”).


38

603 CMR 28.06(2)(d) (“ In-district placement . The placement decision made by the Team shall indicate the specific program setting in which services will be provided.”).


39

603 CMR 28.04(2)(c) (school district assessors) (emphasis supplied); 603 CMR 28.04(5)(e) (independent evaluators) (emphasis supplied).


40

603 CMR 28.04(2)(c) (emphasis supplied); 603 CMR 28.04(5)(e) (emphasis supplied).


41

The relevant text of the regulations which were promulgated in March 2000 is as follows:

Determination of placement. After the IEP has been fully developed, the Team shall determine the appropriate type of placement to deliver the services on the student’s IEP. The school district shall determine the specific classroom or school at which services will be provided to implement the placement decision of the Team.

1. Identification by the Team of type of placement shall proceed in accordance with the options delineated in 603 CMR 28.06 and shall not specify particular classrooms or schools .

603 CMR 28.05(6) (emphasis supplied).


42

Section 417 of chapter 159 of the Acts of 2000 (emphasis supplied).


43

One may also refer back to the 1999 regulations to understand what the current regulations are intended to provide since, as noted above, the legislative mandate directed the Massachusetts DOE to “continue in effect and enforce the following regulations in effect on January 1, 1999 . . . 603 CMR 28.322.” The regulations in effect on January 1, 1999 required the IEP Team to designate the “prototype through which the child’s program is to be provided and the specific program within such prototype.” 603 CMR 28.322.22. The term “prototype” was used within these regulations to refer to types of programs – for example, a regular education program with modifications (prototype 502.1), a regular education program with no more than 25% time out (prototype 502.2), a regular education program with no more than 60% time out (prototype 502.3), a substantially separate program (prototype 502.4), etc. 603 CMR 28.502.0. Pursuant to the January 1, 1999 regulations, once the IEP Team determined the prototype, the Team was to determine the “specific program within such prototype”, indicating the need for the Team to identify the actual program that will provide student with his or her special education services in contrast to the more general program prototype.


44

603 CMR 28.06(2)(a) (emphasis supplied).


45

Similarly, the Massachusetts DOE IEP Process Guide makes clear that the IEP Team must first consider the specific school that the student would attend if not disabled. If the IEP Team determines this school to be appropriate for the student, it would be his/her educational placement. This further supports the conclusion that the IEP Team is to consider the actual location of the special education services. Mass. DOE IEP Process Guide , p. 28 (June 2001). The IEP Process Guide may be found at: http://www.doe.mass.edu/sped/iep/proguide.pdf


46

603 CMR 28.06(2)(e)(3) .


47

See also 603 CMR 28.06(2)(f)(2) further describing the IEP Team’s role regarding out-of-district placements.


48

603 CMR 28.06(2)(d)(1).


49

The Administrative Advisory may be found at: http://www.doe.mass.edu/sped/advisories/01_5.html


50

DOE form PL-1 may be found at: http://www.doe.mass.edu/sped/iep/forms/word/Form_PL_1.doc


51

603 CMR 28.06 (2)(e).


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