Matt and Fairhaven and Acushnet Public Schools – BSEA # 10-6249



<br /> Matt and Fairhaven and Acushnet Public Schools – BSEA # 10-6249<br />

COMMONWEALTH OF MASSACHUSETTS

BUREAU OF SPECIAL EDUCATION APPEALS

In re: Matt1 and Fairhaven and Acushnet Public Schools

BSEA# 10-6294

RULING ON FAIRHAVEN PUBLIC SCHOOLS’ MOTION TO DISMISS APPEAL

RULING ON ACUSHNET PUBLIC SCHOOLS’ MOTION TO DISMISS APPEAL

STATEMENT OF THE CASE

On April 1, 2010 Parent filed a hearing request on behalf of Matt with the BSEA. Parent desired to file his hearing request against the Fairhaven Public Schools. However, both Parent and Matt reside in Acushnet, MA so the Notice of Hearing listed both the Fairhaven Public Schools (FPS) and the Acushnet Public Schools (APS) and a hearing date was scheduled for May 6, 2010. A pre-hearing conference call (PHCC) was held on April 20, 2010. The Hearing Officer requested documentation/affidavits from both FPS and APS and the parties agreed to postpone the May 6, 2010 hearing date. After several postponements requested by the parties, a second PHCC took place on May 18, 2010, during which the Hearing Officer requested additional information from APS. On May 20, 2010 both FPS and APS filed Motions to Dismiss Parent’s appeal. On May 25, 2010 Parent filed his response to FPS, and APS’ Motions to Dismiss (MTD). On May 28, 2010 the Hearing Officer scheduled a telephonic motion session for June 9, 2010 and oral arguments by the parties were presented at that time.

BRIEF HISTORY OF THE CASE

Matt is a 17 year old special education student. Matt is autistic. Matt has cognitive and developmental delays and demonstrates behaviors which interfere with his ability to learn. Matt’s most recent evaluation, conducted in January 2010, found that his self help skills, social skills, developmental skills, academic skills and communication skills range between a 5.10 to a 7.8 age level.

Matt’s last placement was at the Cape Cod Collaborative. Parent accepted that Individual Educational Program (IEP) dated October 17, 2008 to October 16, 2009 but indicated that Matt’s last day of school would be December 10, 2008 (Matt’s sixteenth birthday) unless Matt was transferred to Fairhaven High School. Matt has not attended any school placement under the auspices of APS since that time. APS proceeded to a BSEA hearing against Parent and in a decision dated March 3, 2009 (BSEA# 09-0818) Hearing Officer Putney-Yaceshyn determined that the Cape Cod Collaborative placement provided Matt with a free and appropriate public education (FAPE) in the least restrictive educational environment; and that Parent’s action keeping Matt out of school constituted a denial of FAPE. After the BSEA decision Matt continued to remain out of school.

When the 10/08-10/09 IEP expired APS held a team meeting (which Father refused to attend) and drafted a new IEP, to which Father never responded. In January 2010 Father requested an Independent Education Evaluation (IEE) to which APS consented. The IEE took place on January 28, 2010 and another team meeting was held on February 22, 2010 in which the IEE and possible placement options were discussed. Father only agreed to a referral to be sent to Fairhaven High School (FHS). Ms. Coffin, APS’ Special Education Director, informed Father that she would send the referral to FPS; would visit FHS’ programs for the cognitively impaired; and would be willing to send Matt to FHS if there was an appropriate program for Matt.

APS does not have its own high school. When Acushnet students go to high school, whether regular education or special education students, they are tuitioned into either FHS or New Bedford High School (NBHS) pursuant to agreements between Acushnet and Fairhaven and between Acushnett and New Bedford. If FPS or New Bedford Public Schools does not have appropriate special education programs, special education students attend out of district special education programs at Acushnet’s expense.
(See Affidavit of Danielle Coffin dated May 6, 2010.)

STATEMENT OF POSITIONS

Parent’s position is that Matt should be able to attend FHS just as his sister did. Parent contends that there is a student who lives in Fairhaven who attends FHS and who is just like Matt.

FPS’ position is that this appeal must be dismissed against FPS. FPS contends that Matt is not a resident of Fairhaven and would be able to attend FHS pursuant to the agreement between Fairhaven and Acushnet only if FPS had an existing educational program at FHS that would appropriately address Matt’s special education needs. FPS contends that it has no such program – therefore FPS has no obligation to accept or educate Matt.

APS’ position is that after a January 2010 IEE and February 2010 team meeting it sent a referral packet regarding Matt to FPS; that the special education directors of APS and FPS spoke regarding Matt and the available special education programs at FHS; and that the APS special education director observed all potential programs available to Matt at FHS. The APS and FPS directors of special education agree that there is no appropriate special education program for Matt at FHS. APS contends that because Parent’s only request for relief is placement at FHS; and because there is no appropriate program for Matt at FHS; placement cannot be ordered pursuant to the agreement between APS and FPS. Therefore, Parent’s appeal must be dismissed against APS.

RULING

Based upon the written documentation and written arguments submitted by the parties, the oral argument by the parties, a review of the applicable law, and a review of the contract between APS and FPS, I conclude that both FPS’ and APS’ Motions to Dismiss this Appeal are GRANTED and that BSEA#10-6294 is DISMISSED .

My analysis follows.

Under Massachusetts law, all students are entitled to attend school in the place that they reside. The same is true under federal special education law. Matt and his father do not reside in Fairhaven. Matt’s only basis for attending FHS is pursuant to the agreement between APS and FPS. On April 25, 2007 APS and FPS executed a contract entitled Acushet Tuitioned Students’ Agreement. Under this agreement FPS agreed to accept students from Acushnet, on a tuition basis, from grades nine through twelve at FHS commencing with the school year which began September 2007. The operative language which applies to this case can be found on page 5 of this agreement:

Notwithstanding the foregoing provisions, if the Administrators of Special Education in Fairhaven and Acushnet agree that there is no appropriate program available to students in the Fairhaven Public Schools for a student with special needs, the placement of such student shall be the sole and exclusive responsibility of ACUSHNET and FAIRHAVEN shall not be required to accommodate such special needs students, pursuant to the provisions of this AGREEMENT.

In the instant case APS’ Special Education Director sent a referral for Matt to FPS; observed the potential special education programs at FHS; spoke with the FPS special education director; and made a determination that there is no program at FHS that would provide him with FAPE (affidavits, Coffin). FPS’ Special Education Director reviewed Matt’s records, reviewed the special education programs at FHS and made a determination that there is no program at FHS that would offer Matt FAPE (affidavit, Levine). Both Ms. Coffin and Ms. Levine cited the specific components which Matt requires which do not exist in the current FHS programs. (See affidavits, Coffin; Levine.)

In summary, based upon the terms of the contract between APS and FPS, the special education directors of both Fairhaven and Acushnet agree that there is not an appropriate special education program for Matt at FHS. Thus, pursuant to said contract, FPS is not required to accommodate Matt who remains the sole and exclusive responsibility of Acushnet. Therefore FPS’ Motion to Dismiss this Appeal is GRANTED .

Parent has made it clear during this appeal that the only thing he requests is Matt’s placement at FHS and that he does not want Matt placed anywhere else. Parent’s only claim for relief is Matt’s placement at FHS. Given Parent’s and Matt’s residence in Acushnet, not Fairhaven, and given the specific terms of the agreement between FPS and APS, the Hearing Officer is unable to order Matt’s placement at FHS. Parent’s Hearing Request fails to state a claim for which relief can be granted. Therefore, APS’ Motion to Dismiss this Appeal is GRANTED .

I sincerely hope that Parent will allow APS to send out referrals to New Bedford Public Schools and other out of district placements such as collaborative or private day schools that have an appropriate special education program for Matt.

ORDER

I. FPS’ Motion to Dismiss is GRANTED .

II. APS’ Motion to dismiss is GRANTED .

III. BSEA# 10-6294 is DISMISSED .

By the Hearing Officer

__________________________

Dated: July 16, 2010

Raymond Oliver


1

Matt is a pseudonym chosen by the Hearing Officer to protect the privacy of the student in publicly available documents.


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