Mashpee Public Schools – BSEA # 09-1946



<br /> Mashpee Public Schools – BSEA # 09-1946<br />

COMMONWEALTH OF MASSACHUSETTS

BUREAU OF SPECIAL EDUCATION APPEALS

In Re: Mashpee Public Schools

BSEA # 09-1946

DECISION

This decision is issued pursuant to the Individuals with Disabilities Education Act (20 USC 1400 et seq .), Section 504 of the Rehabilitation Act of 1973 (29 USC 794), the state special education law (MGL c. 71B), the state Administrative Procedure Act (MGL c. 30A), and the regulations promulgated under these statutes.

A hearing was held on October 1, 2008 in Malden, MA before William Crane, Hearing Officer. Those present for all or part of the proceedings were:

Student’s Mother

Student’s Father

Joan Collins Assistant Administrator of Special Education, Mashpee Public Schools

Carla Thomas Administrator of Special Education, Mashpee Public Schools

Paige Tobin Attorney for Mashpee Public Schools

The official record of the hearing consists of documents submitted by the Parents and marked as exhibits P-1 through P-9; documents submitted by the Mashpee Public Schools (Mashpee) and marked as exhibits S-1 through S-3; and approximately two hours of recorded oral testimony and argument. As agreed by the parties, oral closing arguments were made at the end of the Hearing on October 1, 2008, and the record closed on that date.

INTRODUCTION AND ISSUE

This decision addresses a dispute regarding Student’s transportation to and from school.

Parents have transported their son to and from the Learning Prep School in Newton, MA, since 2002, obtaining mileage reimbursement from Mashpee. Mashpee now seeks to provide the transportation through its contract with the Cape Cod Collaborative, rather than through continued reimbursement of Parents’ mileage expenses. Parents intend to continue to transport their son to school regardless of whether they are reimbursed by Mashpee for mileage expenses. Parents take the position that because of an agreement between Parents and Mashpee, Mashpee should be required to continue to reimburse them for their mileage expenses.

During the evidentiary Hearing, the parties agreed that regardless of the outcome of my Decision, Mashpee would continue to reimburse Parents for their transportation expenses until the date of my Decision. There was therefore no dispute regarding Parents’ “stay put” right to continued reimbursement pending my Decision.1

The only issue to be addressed is whether Mashpee must reimburse Parents for their mileage expenses prospectively if Parents continue to provide their son’s transportation to and from school.

FACTS

The following facts are not in dispute.

In 2002, Parents filed with the Bureau of Special Education Appeals (BSEA) a Hearing Request with respect to their son’s special education services. The BSEA scheduled an evidentiary Hearing for December 10, 11, and 12, 2002. Exhibit P-2.

By letter to Parents, dated November 22, 2002, Mashpee’s then Director of Special Education (Grace Day) offered to settle the BSEA dispute by writing an IEP for an out-of-district placement at the Learning Prep School, including transportation to and from the school. The letter also made clear that, at Parents’ request, the Parents could provide the transportation and be reimbursed by Mashpee for mileage. The relevant parts of the letter are as follows:

With reference to the due process hearing that is currently scheduled to be held on December 10-12, 2002, I am writing to confirm that the Mashpee school department is prepared to write an IEP placing [Student] at the Learning Prep School in Newton, Massachusetts, and providing him with transportation between his home and the school (or reimbursing you for mileage if you prefer to transport him yourselves). I understand that a team meeting has been scheduled for December 2, 2002, at the Learning Prep School, for the purpose of writing the IEP.

This is an offer of settlement made in accordance with Section 615(i)(3)(D) of the Individuals with Disabilities Education Act. If you have any questions concerning this offer, please do not hesitate to call or write.

Exhibit P-1.

Parents responded to this offer of settlement not by writing to or calling Grace Day but rather by attending the IEP Team meeting that occurred on December 2, 2002, at which time the parties reached agreement on Student’s services and placement. Mashpee prepared a written IEP, which was fully accepted by Parents. The IEP provided that Student would be placed at Learning Prep School, that Student would receive regular (rather than special) transportation from home to school, and that “Parent will transport with reimbursement from the Town.” The IEP covered the period 12/2/02 to 12/2/03. Testimony of Father; exhibit S-3 (IEP at page IEP6).

Pursuant to this accepted IEP, Mashpee placed Student at Learning Prep School, Parents provided Student’s transportation to and from school, and Mashpee reimbursed Parents for transportation costs based upon the mileage driven by Parents. The parties continued this arrangement each succeeding school year through the 2007-2008 school year, as reflected within accepted IEPs. Testimony of Father, Collins.

On May 19, 2008, during an IEP Team meeting, Mashpee advised Parents that for the following school year (2008-2009), Mashpee would be providing transportation to Learning Prep School by contracting with the Cape Cod Collaborative (Collaborative), rather than continuing to reimburse Parents for their mileage expenses. The IEP prepared by Mashpee for the 2008-2009 school year stated that the Collaborative would provide Student’s transportation to Learning Prep School as of July 1, 2008. Parents rejected this portion of the IEP. Testimony of Collins; exhibit S-1 (IEP at pages IEP6, IEP8).

On September 11, 2008, Mashpee filed a Hearing Request with the BSEA, asking the BSEA to uphold Mashpee’s decision to provide transportation through the Collaborative, rather than through continued reimbursement of Parents’ transportation expenses.

DISCUSSION

It is not disputed that Student is an individual with a disability, falling within the purview of the federal Individuals with Disabilities Education Act (IDEA)2 and the state special education statute.3 The IDEA was enacted “to ensure that all children with disabilities have available to them a free appropriate public education [FAPE] that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living.”4 As the party seeking relief from the BSEA, Mashpee has the burden of persuasion.5

Student is attending Learning Prep School pursuant to a partially-accepted IEP. The parties agree that Mashpee bears responsibility for Student’s transportation between home and school. It is not disputed that, as a general rule, a school district is to provide this transportation itself or through contracted services unless, alternatively, the school district and the parents agree that the parents will transport their son or daughter, with mileage reimbursement from the school district.

At issue in the instant dispute is whether there is an agreement between the parties that obligates Mashpee to reimburse Parents for transporting their son to and from Learning Prep School. Relying upon a November 22, 2002 settlement letter from Mashpee, Parents take the position that Mashpee has no choice but to offer Parents travel reimbursement for the current and succeeding school years so long as their son continues to attend Learning Prep School.

This dispute boils down to a simple question—that is, whether Mashpee’s November 22, 2002 settlement letter to Parents requires Mashpee to continue reimbursing Parents for providing transportation services to and from school.

Parties to a dispute before the BSEA may enter into an agreement, pursuant to which they change their obligations and responsibilities under state and federal special education law. In the instant dispute, there is an agreement that relates to rights and responsibilities that fall within the purview of a BSEA Hearing Officer.6 I therefore will consider the agreement and determine whether and to what extent the agreement alters Mashpee’s responsibilities towards Student and his Parents.7

When an agreement is unambiguous, it must be interpreted according to its terms.8 In the instant dispute, Mashpee’s settlement offer by letter of November 22, 2002 clearly stated that Mashpee would write an IEP to provide for certain services and transportation (including the option of Parents’ transporting their son and being reimbursed for mileage). Parents responded to the November 22, 2002 letter by attending the December 2002 IEP Team meeting and by agreeing to the IEP that was generated by Mashpee as a result of that meeting. Testimony of Father.

Mashpee’s December 2002 IEP satisfied all of the terms of Mashpee’s letter of November 22, 2002. Parents accepted this IEP in full. Mashpee was required to do nothing further to comply with its letter of November 22, 2002. Exhibit P-1; see Facts section above for the wording of the November 22, 2002 letter.

As with all IEPs, the December 2002 IEP was for a limited period of time. That particular IEP was for the period of 12/2/02 to 12/2/03. In subsequent IEPs, Mashpee continued to propose, and Parents continued to accept, that Parents would transport their son to school and would be reimbursed by Mashpee for mileage. Testimony of Collins.

Mashpee sought to discontinue this practice through its most-recently proposed IEP (from 5/19/08 to 5/18/09), which provided that Parents will transport Student until June 30, 2008 and that Mashpee will provide transportation thereafter. Exhibit S-1 (page IEP6).

As is reflected in a Massachusetts Department of Elementary and Secondary Education (ESE) guidance, once a school district decides to provide the transportation itself, parents are entitled to mileage reimbursement only by agreement of the school district.9 Because the agreement in the instant dispute, as reflected within Mashpee’s November 22, 2002 letter to Parents, pertains only to the December 2002 IEP, the letter agreement does not preclude Mashpee from altering its transportation practice through any subsequent IEP.

In sum, I conclude that Mashpee’s agreement to allow Parents to be reimbursed for transporting their son, as reflected within Mashpee’s letter of November 22, 2002, did not require that Mashpee continue to offer Parents this option in IEPs subsequent to the December 2002 IEP. Mashpee may provide transportation through its contractual arrangement with the Cape Cod Collaborative rather than by offering Parents travel reimbursement. Consequently, Parents may continue to transport their son to Learning Prep School but are not entitled to mileage reimbursement from Mashpee.

ORDER

Mashpee is not required to continue reimbursing Parents for mileage expenses from Parents’ transporting their son to Learning Prep School.

By the Hearing Officer,

William Crane

Dated: October 7, 2008

COMMONWEALTH OF MASSACHUSETTS

BUREAU OF SPECIAL EDUCATION APPEALS

THE BUREAU’S DECISION, INCLUDING RIGHTS OF APPEAL

Effect of the Decision

20 U.S.C. s. 1415(i)(1)(B) requires that a decision of the Bureau of Special Education Appeals be final and subject to no further agency review. Accordingly, the Bureau cannot permit motions to reconsider or to re-open a Bureau decision once it is issued. Bureau decisions are final decisions subject only to judicial review.

Except as set forth below, the final decision of the Bureau must be implemented immediately. Pursuant to M.G.L. c. 30A, s. 14(3), appeal of the decision does not operate as a stay. Rather, a party seeking to stay the decision of the Bureau must obtain such stay from the court having jurisdiction over the party’s appeal.

Under the provisions of 20 U.S.C. s. 1415(j), “unless the State or local education agency and the parents otherwise agree, the child shall remain in the then-current educational placement,” during the pendency of any judicial appeal of the Bureau decision, unless the child is seeking initial admission to a public school, in which case “with the consent of the parents, the child shall be placed in the public school program”. Therefore, where the Bureau has ordered the public school to place the child in a new placement, and the parents or guardian agree with that order, the public school shall immediately implement the placement ordered by the Bureau. School Committee of Burlington, v. Massachusetts Department of Education , 471 U.S. 359 (1985). Otherwise, a party seeking to change the child’s placement during the pendency of judicial proceedings must seek a preliminary injunction ordering such a change in placement from the court having jurisdiction over the appeal. Honig v. Doe , 484 U.S. 305 (1988); Doe v. Brookline , 722 F.2d 910 (1st Cir. 1983).

Compliance

A party contending that a Bureau of Special Education Appeals decision is not being implemented may file a motion with the Bureau contending that the decision is not being implemented and setting out the areas of non-compliance. The Hearing Officer may convene a hearing at which the scope of the inquiry shall be limited to the facts on the issue of compliance, facts of such a nature as to excuse performance, and facts bearing on a remedy. Upon a finding of non-compliance, the Hearing Officer may fashion appropriate relief, including referral of the matter to the Legal Office of the Department of Education or other office for appropriate enforcement action. 603 CMR 28.08(6)(b).

Rights of Appeal

Any party aggrieved by a decision of the Bureau of Special Education Appeals may file a complaint in the state court of competent jurisdiction or in the District Court of the United States for Massachusetts, for review of the Bureau decision. 20 U.S.C. s. 1415(i)(2).

An appeal of a Bureau decision to state superior court or to federal district court must be filed within ninety (90) days from the date of the decision. 20 U.S.C. s. 1415(i)(2)(B).

Confidentiality

In order to preserve the confidentiality of the student involved in these proceedings, when an appeal is taken to superior court or to federal district court, the parties are strongly urged to file the complaint without identifying the true name of the parents or the child, and to move that all exhibits, including the transcript of the hearing before the Bureau of Special Education Appeals, be impounded by the court. See Webster Grove School District v. Pulitzer Publishing Company , 898 F.2d 1371 (8th Cir. 1990). If the appealing party does not seek to impound the documents, the Bureau of Special Education Appeals, through the Attorney General’s Office, may move to impound the documents.

Record of the Hearing

The Bureau of Special Education Appeals will provide an electronic verbatim record of the hearing to any party, free of charge, upon receipt of a written request. Pursuant to federal law, upon receipt of a written request from any party, the Bureau of Special Education Appeals will arrange for and provide a certified written transcription of the entire proceedings by a certified court reporter, free of charge.


1

Nevertheless, Parents’ “stay put” rights may have implications with respect to any appeal of my Decision. I therefore address this issue briefly. At the evidentiary Hearing, Parents sought to establish through Ms. Collins’ testimony that Mashpee’s transportation of their son would take additional time because of other children being transported in the same van as their son. However, Ms. Collins explained that the one or two other children who would be transported with Student, attend private schools in the general vicinity of Learning Prep School, making it unlikely that the travel time would be significantly increased if the Cape Cod Collaborative were to transport Student. Because the change in the mode of transportation services provided or funded by Mashpee would not likely have a detrimental impact upon Student’s education, this change would not implicate Parents’ “stay put” rights. See Hale v. Poplar Bluff R-1 School District, 280 F.3d 831 (8th Cir. 2002) (determination of whether there has been a change in student’s “then-current educational placement” is a “fact-specific” inquiry that considers the impact of a change of placement on student’s education); Tennessee Department of Mental Health v. Paul B ., 88 F.3d 1466 (6th Cir. 1996) (“must identify a detrimental change in the elements of an educational program in order for a chance to qualify for the stay put provision”); Sherri A.D. v. Kirby, 975 F.2d 193, 206 (5th Cir. 1992) (change in student’s stay put placement occurs only when “a fundamental change in, or elimination of, a basic element of the educational program has occurred”); DeLeon v. Susquehanna Community School District , 747 F.2d 149, 153-154 (3rd Cir. 1984) (“touchstone in interpreting section 1415 has to be whether the decision is likely to affect in some significant way the child’s learning experience”).


2

20 USC 1400 et seq .


3

MGL c. 71B.


4

20 USC 1400(d)(1)(A). See also 20 USC 1412(a)(1)(A); MGL c. 71B, ss. 2, 3.


5

Schaffer v. Weast , 546 U.S. 49, 62(2005) (burden of persuasion in an administrative hearing challenging an IEP is placed upon the party seeking relief; a party who has the burden of persuasion “ loses if the evidence is closely balanced” ).


6

20 USC 1415(b)(6)(A) (hearing officer’s jurisdiction includes disputes involving “ the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to such child”).


7

Federal courts have consistently required hearing officers and administrative law judges to consider such agreements when resolving a special education dispute. See, e.g., J.P. v. Cherokee County Bd. of Educ. , 218 Fed.Appx. 911 (11 th Cir. 2007 ) (claims regarding alleged breach of contract involving special education issues must be addressed through administrative due process remedies prior to consideration by the court); H.C. v. Colton-Pierrepont Central School Dist . , — F.Supp.2d —-, 2008 WL 2902076 ( N.D.N.Y. 2008) (“ provisions in … settlement agreement were sufficiently related to plaintiff’s 2006-07 IEP such that the IHO not only had the authority to enforce the settlement agreement, but had a duty to do so”); In Re: Longmeadow School District , BSEA # 07-2866, footnote 8 (August 14, 2008) (ruling analyzes issue and collects authorities).


8

Alison H. V. Byard , 163 F.3d 2, 6 (1 st Cir. 1998) .


9

The ESE guidance provides in relevant part: “Parents are not eligible for reimbursement if the school has provided for transportation and the parent decides not to use it without previous agreement with the school district.” Reissued Mileage Reimbursement for Parents under 603 CMR 28.07(6) , dated August 14, 2008 and found at http://www.doe.mass.edu/sped/2008/603cmr2807.html


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