COMMONWEALTH OF MASSACHUSETTS
Bureau of Special Education Appeals
In Re: Harwich Public Schools and Spaulding Youth Center
BSEA #06-2300
Ruling on Harwich Motion to Stay Put
This matter comes before the Bureau of Special Education Appeals (hereinafter the “Bureau”) on the Motion of the Harwich Public Schools (hereinafter “Harwich”) for an Order enforcing the “stay put” provisions of state and federal special education law against the Spaulding Youth Center. The parent/legal guardian joined with Harwich as she is seeking to continue her son’s residential special education placement at the Spaulding Youth Center (hereinafter “Spaulding”) beyond the December 1, 2005, termination date identified by Spaulding. Spaulding asserted that the Bureau lacked subject matter jurisdiction to entertain a dispute between a Massachusetts public school system and a private special education facility located across the border in New Hampshire. Spaulding also argued that New Hampshire’s state law prohibits provision of residential services to students who have attained the age of 21, and therefore that it could not legally provide a placement to the Student beyond his 21 st birthday. Both parties submitted thorough and helpful briefs and argued their motions and oppositions during the prehearing telephone conference held on November 28, 2005. The parties agreed on the following pertinent facts:
1. The Student has profound and ongoing special education needs and is eligible under state and federal law to receive a free, appropriate public education. At all times relevant to this dispute Harwich has been the local education agency (“LEA”) responsible for ensuring the provision of FAPE to the Student. (Attachment A-Spaulding Motion to Dismiss)
2. Spaulding is a private special education facility located in New Hampshire. It provides special education programs during the day as well as residential services. It is appropriately approved and licensed to provide such services by the state of New Hampshire. Spaulding’s residential “child care” license authorizes it to provide services to individuals: “ages 6 years to 20 years”. (Attachment C-Spaulding Motion to Dismiss)
3. The Student was initially placed in Spaulding’s residential special education program in May, 2002. The Parent/guardian claimed she was informed at that time that he could remain at Spaulding until he attained his 22 nd birthday. (Parent) The Student is currently 20 years old. He will turn 21 years old on his next birthday, December 2, 2005. (Attachment A-Spaulding Motion to Dismiss)
4. The Team met on June 17, 2005, to develop an IEP for the 2005-2006 school year. The Team determined that Spaulding was an appropriate program and placement for the Student. With the limited exception of a few physical therapy goals the mother/guardian accepted the proposed IEP calling for the Student’s continued residential placement at Spaulding. The parties were aware, at least as of June 17, 2005, of Spaulding’s inability to program the Student beyond his 21 st birthday.
The accepted IEP contains the following language in the Parent concerns section: “Parents are concerned about services in New Hampshire ending at age 21, December 2005. Parents agree to sign release for Harwich Public Schools to send out packets to selected schools that serve up to age 22.” The vision statement provides: “The Parents and Harwich Public Schools are currently seeking a suitable placement for [the Student] that will provide services up to age 22. Parents request a waiver for [the Student] to continue attending Spaulding concurrently.” (Attachment A-Spaulding Motion to Dismiss)
5. After the Team meeting Harwich began to look for an appropriate alternative special education program that would provide comprehensive services to the Student until he turned 22 years old. When it was not immediately successful, Harwich request a waiver of the 21 year age limit for childcare facilities from the chief of the Bureau of Child Care Licensing for the State of New Hampshire. On October 21, 2005, Harwich was notified that its waiver request had not been approved for the following reasons:
· New Hampshire Child Care Facility Licensing and Operating Standards require that programs request waivers; members of the public cannot do it on their behalf;
· Spaulding Youth Center has not requested a waiver;
· We cannot waive the law-the law defines a child as any person under 21 years of age. The Bureau of Child Care Licensing licenses child care agencies, and not facilities for adults;
· If Spaulding Youth Center had a waiver on their license it could impact their funding;
· We cannot require Spaulding Youth Center to keep an individual at their child care facility; and
· If Spaulding Youth Center were to keep a student at the childcare facility beyond his 21 st birthday it would violate the provisions of their license.
(Attachments B, C, E, F, G Spaulding Motion to Dismiss)
6. The New Hampshire childcare license covers the residential component of the Student’s special education program at Spaulding. If a suitable alternate residence could be located the Student could attend the day portion of the Spaulding program. The parties are not aware of any appropriate residential facility which would permit the Student to continue receiving day services from Spaulding.
7. On October 31, 2005, Spaulding, through its attorney, issued a “Thirty Day Notice of Discharge” to the Student. The notice stated that Spaulding would cease providing services to the Student at twelve noon on December 1, 2005. (Attachment H-Spaulding Motion to Dismiss)
8. Harwich filed a request for hearing on November 15, 2005, and was assigned a hearing date of December 19, 2005. Its Motion for Stay Put was expedited at its request and heard on November 28, 2005. Harwich has located an alternate residential special education program for the Student: Crystal Springs in Assonet, Massachusetts. Crystal Springs is unable to accommodate the Student until January 17, 2006.
Discussion
This matter combines some of the most challenging issues in special education today: a student with extensive, complicated, and quickly evolving learning needs; an extremely limited pool of resources appropriate to meet those needs; entanglement of public funding and supervision with private service provision; multiple responsible jurisdictions with inconsistent policies and regulations; and, as always, a race against the ticket clock. While all those involved with this student appear to have acted appropriately and expeditiously within their own sphere of knowledge and responsibility, the result is not a victory for anyone. After careful consideration of the excellent briefs and arguments of both parties it is my determination that the Motion of the Harwich Public Schools for an Order enforcing the Student’s stay-put placement at the Spaulding Youth Center must be denied. My reasoning follows:
A. Jurisdiction
At the outset Spaulding argues that the Bureau, a Massachusetts
Administrative agency, lacks jurisdiction to hear disputes involving private special education service provides located in another state. Though never directly addressed by a court that argument has been considered and rejected by the Bureau on numerous occasions. The entitlement of Massachusetts students to the full protections afforded to them under Massachusetts’ special education law follows the student to his or her special education placement regardless of where it is located and regardless of whether the services are delivered by public employees or private contractors. The key elements determining the jurisdiction of the Bureau are: the residence of the Student; the expenditure of Massachusetts public funds; and the involvement of M.G.L. c. 71B, 20 U.S.C. 1401 et seq. and/or 29 U.S.C. 794. Here there is no dispute that the Student is a resident of Harwich, a town in Massachusetts. Neither is there any question that Massachusetts public funds are currently being expanded on his behalf and that pursuant to M.G.L. c. 71B and 20 U.S.C. 1401 the Student is entitled to protection and funding until he reaches his 22 nd birthday. Supervision of out-of-state placements of Massachusetts special education students is routine, indeed necessary to ensure that every eligible Massachusetts student, regardless of the seventy of the handicap or the location of the service, is receiving a free, appropriate public education. See eg : Raoul and Agawam, 10 MSER 292 (2004); Lolani and Northampton , 9 MSER 397 (2003); South Hadley Public Schools , 6 MSER 67 (2000).
In the same vein, Spaulding also argued against “joinder” of Spaulding in this matter. Harwich filed the initial hearing request directly against Spaulding, as it is permitted to do by 603 CMR 28.08(3) and Hearing Rule 1. Even were Spaulding not the responding party joinder under BSEA Rule 1(j) would be appropriate and necessary as Spaulding is the current service provider and thus stands in the shoes of Harwich as the provider of FAPE.
B. Stay Put
According to the undisputed facts presented here New Hampshire state law
does not permit Spaulding to provide any residential special education service to the Student once he reaches his 21 st birthday. On December 2, 2005 Spaulding is, in effect, closed and unavailable to this Student. The Student seeks an order requiring Spaulding to continue to provide special education services to him beyond his 21 st birthday while the dispute as to the interpretation of New Hampshire licensing regulations, as well as the search for an alternate special education placement, move forward. Spaulding would be the Student’s “stay put” placement.
The right of a student to “stay put” in the special education program in place at the time a dispute arises while the dispute is being resolved is one of the basic guarantees of both federal and state special education law. 20 U.S.C. § 1415 (j); 34 CFR § 300.514; 603 CMR 28.08(7). Massachusetts and federal regulations allow for limited exceptions to the universal application of this principle in instances of serious disciplinary infractions or substantial risk of injury to the student or others if a stay put placement is required. To change a student’s placement otherwise requires a court order. 603 CMR 28.08(7)(d).
The regulations do not address circumstances, thankfully rare, when a student’s agreed upon placement is no longer available due to precipitous closure, perhaps, or impossibility of transportation. In those instances parties typically work together to quickly find appropriate alternate arrangements. I am not aware of any case in which a court ordered a private placement to remain open in order to provide FAPE t a student. See: Henry v. School Administrative Unit , 70 F. Supp 2 nd 52 (D.N.H. 1999) for a thoughtful discussion of stay put rights in the context of a private special education school. Ordinarily the student’s sending school district retains overall responsibility for guaranteeing FAPE for substitute provision of service, such as enrollment in a private special education facility, break down.
In assessing requests for stay put orders hearing officers and courts follow the guidance given by the U.S. Supreme Court in Honig v. DOE , 484 U.S. 305, 108 S. Ct. 592 (1988). Though the context in Honrig was discipline, rather than facility closure, the Court’s discussion of the federal power to enforce the “stay put” provisions of special education law through the mechanism of a preliminary injunction is still apt. See also : DOE v. Brookline School Committee , 722 F. 2d 910 (1 st Cir. 1983). Underlying all findings the fundamental question to be resolved is whether the state complied with the procedures set out in the federal special education law. 20 U.S.C. 1401 et seq .
And that, in this instance, is the rub. As a Massachusetts administrative hearing officer I am unable to explore any potential conflict between the provisions of New Hampshire special education law and the IDEA. I cannot, for example, examine whether the New Hampshire licensing regulations that treat individuals with disabilities aged 21 to 22 differently than those aged 3-21 are consistent with federal law. Neither can I determine whether New Hampshire’s disparate treatment of IDEA eligible students based on age is permissible under federal law. Nor is there sufficient evidence, at this juncture, for me to consider whether New Hampshire treats IDEA eligible students differently based on whether their public funding comes from Massachusetts or New Hampshire. I have no authority to order New Hampshire, or any of its political subdivisions, to conform to federal or either state’s procedural due process requirements. Neither do I have any authority to suspend or modify application of New Hampshire’s childcare licensing regulations even when that will result in an abrogation of the Student’s IDEA “stay put” protections.
Therefore I find that the Bureau cannot provide the remedy requested by Harwich. In this instance the Bureau’s role is limited to ensuring that Harwich provide a comparable program and placement consistent with the Student’s current IEP in another location as expeditiously as possible.
Order
1. The Motion of the Spaulding Youth Center to Dismiss the Hearing Request filed by Harwich is DENIED;
2. The Motion of Harwich Public Schools to Enforce Stay Put is DENIED;
3. Harwich shall submit a status report detailing its efforts to provide all the services accepted in the Student’s 2005-2006 IEP no later than December 9, 2005. In addition Harwich shall indicate whether any issues remain for hearing which continues to be set for December 19, 2005.
By the Hearing Officer,
___________________________
Lindsay Byrne,
COMMONWEALTH OF MASSACHUSETTS
Bureau of Special Education Appeals
In Re: Harwich Public Schools and Spaulding Youth Center
BSEA #06-2300
Ruling on Harwich Motion for Reconsideration
This comes before the Bureau on the Emergency Motion of the Harwich Public Schools for Reconsideration of the Ruling issued on November 30, 2005, denying the Motion of Harwich Public Schools for a “stay put” order. Harwich had requested an Order compelling Spaulding Youth Center to retain the Student in its program beyond the scheduled termination of noon, December 1, 2005. Finding that the proposed termination was based on the interpretation and operation of New Hampshire law concerning the Student’s age (21) the Bureau declined to issue the requested stay put order. Harwich now offers an additional document which was not available at the time of the Motion Hearing on November 28, 2005. That document purports to state that in 1989 a student funded by the Massachusetts Department of Mental Retardation remained in placement at the Spaulding Youth Center after the Student’s 21 st birthday.
There is nothing in that document, however, that would support the conclusion that current New Hampshire law is being applied arbitrarily, disparately, or incorrectly to cause the improper termination of the Harwich Student. Moreover, even if Harwich could make such a showing the Massachusetts Bureau of Special Education Appeals, for all the reasons set out in the earlier ruling, is not the appropriate forum in which to seek relief.
Therefore, after serious consideration of Harwich’s Motion for Reconsideration, I find it must be and is DENIED.
Lindsay Byrne, Hearing Officer Date: