COMMONWEALTH OF MASSACHUSETTS
Bureau of Special Education Appeals
In Re: Melrose Public Schools & C. M.
BSEA #07-4987
Ruling
This matter comes before the Bureau of Special Education Appeals on the Emergency Motion of the Melrose Public Schools to Extend Stay Put, filed on March 9, 2007, a Friday, along with its request for hearing. As of March 13, 2007, a Tuesday, there is no response in the record from the Parent, who is proceeding pro se . After careful consideration of the Motion it is my determination that it should be DENIED . The following background information should be helpful in understanding this Ruling:
At the School’s request this matter originally came for hearing before the Bureau of Special Education Appeals on December 5, 2006, before Hearing Officer, Rosa Figueroa. Melrose sought to extend the Student’s diagnostic placement in the Hurd School, a substantially separate day school. The Parent sought the Student’s return to the regular education kindergarten he had been attending prior to his removal to the eight week evaluation program at the Hurd School. In a Decision issued on December 14, 2006, in BSEA #07-2782, the Hearing Officer found explicitly that the Hurd School did not offer the Student a free, appropriate public education in the least restrictive setting. Nonetheless, due to the lack of options presented at the hearing, the Hearing Officer extended the Student’s interim educational program at the Hurd School for “no more than 45 school days.” The Hearing Officer ordered Melrose to create or locate an alternate special education program more closely tailored to the Student’s unique needs within that 45 school day period. The Hearing Officer then anticipated the results of school inaction or noncompliance with the BSEA decision:
“6. Should Melrose fail to locate an appropriate program within the 45 school days of the temporary placement at the Hurd School, then Melrose shall return Student to the regular education classroom…”1
Through the instant Motion Melrose seeks to be relieved of its obligation to provide FAPE to this Student, as determined by the BSEA in the original hearing in December, 2006.
I note particularly both substantive and procedural difficulties with Melrose’s arguments in favor of extending the Student’s educational program at the Hurd School. First, the Hurd School is not the Student’s “Stay Put” placement as so designated by Melrose. The Hearing Officer authorized delivery of a temporary educational program to the Student at the Hurd School as an extremely limited extension of a diagnostic program which cannot, by regulation, be a Student’s “Stay Put” placement.2 No IEP calling for the Hurd School was developed by Melrose and accepted by the Parent.
Furthermore, substantively, Melrose did not present any information newly developed between January 2, and March 9, 2007, which could support a finding that a placement previously found to be inappropriate for a Student is now, within two months, appropriate. There are no new evaluations, assessments, or data collections about the Student. There is no information about the Hurd School other than that presented at the December 5 th , 2006, hearing which the Hearing Officer specifically found to be inadequate. There is no indication that the Hurd School program has been modified in any way to meet the Student’s unique needs. There is no indication even that Melrose complied with the Hearing Officer’s directive to implement the accepted speech-language services for the Student while he was attending the Hurd School. Instead Melrose submitted a proposed IEP which lacks any speech-language services. In all, it appears from this Motion that Melrose did not, and does not, take the BSEA decision of December 14, 2006, seriously.
Finally, it is difficult to understand why Melrose waited until five days, two of which were weekend days, before the official expiration of the forty-five day extension period permitted reluctantly by the Hearing Officer, before requesting assistance from the Bureau. As this maneuver permits the unrepresented Parent very minimal response time, it is difficult to avoid the inference that the timing of the Motion was designed to thwart parental participation in this critical placement decision.
For the foregoing reasons the School’s Emergency Motion to Extend the Student’s placement at the Hurd School is DENIED .
Lindsay Byrne, Hearing Officer
1
In Re: Melrose Public Schools , BSEA #07-2782, 12/14/06 p. 23.
2
603 CMR 28.05 (2) (b) (5).