Pilar and Agawam Public Schools – BSEA # 12-1714

COMMONWEALTH OF MASSACHUSETTS

DIVISION OF ADMINISTRATIVE LAW APPEALS

BUREAU OF SPECIAL EDUCATION APPEALS

In Re: Pilar¹ and the Agawam Public Schools

BSEA #12-1714

RULING ON MOTION FOR STAY PUT

This matter comes before the BSEA independent of an underlying IDEA dispute for clarification of the Student’s “stay put” placement under 603 CMR 28.08 (7) and 20 U.S.C. §1415(j).² The Parents filed the instant Motion at the BSEA on September 2, 2011 seeking a declaration that Talisman Academy, where they had unilaterally placed Pilar in July, 2011, was the Student’s “stay put” placement and seeking reimbursement for expenses associated with that placement. The School opposed the Parent’s Motion asserting that but for the Parent’s failure to cooperate with appropriate admissions procedures the Student could have been placed in an approved, in-state program comparable to her previous placement. During a conference call held on September 14, 2011 the parties agreed to submit this matter for resolution on documents alone. All Motions, Oppositions and supporting affidavits were received by September 26, 2011. After careful consideration of the pertinent, undisputed facts and the arguments of both parties it is my determination that Parents’ Motion for Stay Put should be GRANTED.

LEGAL FRAMEWORK

“Stay Put” is special education shorthand for one of the fundamental procedural protections available to students with disabilities under the IDEA and M.G.L. c. 71B. Unless the parents and the local educational agency/state agree to a difference placement, an eligible student is entitled to remain in the last educational program accepted by the parents while dispute resolution proceedings unfold or until a superseding program is accepted by the Parents.

The federal stay put protections are set out at 20 U.S.C.§1415(j):
during the pendency of any proceedings conducted pursuant to this section, unless the State or local educational agency and the parents otherwise agree, the child shall remain in the then-current education placement of the child;

and at 34 CFR §300.518:

unless the State and local agency and the parents of the child agree otherwise, the child involved in the complaint must remain in his or her current educational placement.

See discusson of stay-put protections (which remained the same from the IDEA to IDEA 2004) in Verhoeven v. Brunswick School Committee , 207 F.3d I (1st Cir. 1999).

Massachusetts extends “stay put” protections to eligible students whenever the parents and responsible school districts disagree even apart from formal due process proceedings under the IDEA and M.G.L.c 71B.

603 CMR 28.08(7) provides:

In accordance with state and federal law, during the pendency of any dispute regarding placement or services the eligible student shall remain in his or her then current education program and placement unless the parents and the school district agree otherwise.
(emphasis added)

Preservation of the “status quo” assures that the Student “stays put” in the last placement the parents and the School agreed was appropriate for her. Doe v. Brookline School Committee , 722 F.2d 910 (1st Cir. 1983).

Generally, the terms of the last accepted IEP should be enforced as the “stay put” relief. Where, however, the precise terms previously agreed to cannot be implemented, a school district’s obligation to maintain the status quo may be fulfilled by identifying and providing a “comparable” program. A “comparable” special education program is one which matches as closely as possible the setting, the type and level of service delivery, the degree of mainstream contact, the methodology and teaching approach, the staff-student ratio, the instructional and therapeutic expertise, and the duration of direct and incidental teaching the Student received in the placement in which the Student was enrolled at the time the dispute or placement interruption occurred.³ Determining what constitutes a “comparable” stay put placement is fact-specific. The critical inquiry is whether a proposed change of setting or service would significantly depart from the parameters of the special education services to which the parties previously agreed, would have a substantial, detrimental effect on the Student’s learning, or would result in a more restrictive educational program.

Should the Parents demonstrate that the School has failed to provide an appropriate special education program, to implement an agreed upon special education program, or to ensure that a student’s right to “stay put” is observed, they may be entitled to reimbursement of any expenses they incur in securing substitute special education services. Services and placements obtained by parents to address the educational needs of eligible students that should be met by the school district, but aren’t, need not comply with all state standards. Parents need only show that the alternate service or placement they secured is responsive to the student’s special education need and provides some educational benefit to her. See : Matthew J. v. Mass. Dept. of Education , 989 F. Supp. 380 (D.Ma.1998) citing Florence County School District Four v. Carter , 510 U.S. 7 (1993); School Committee of Town of Burlington v. Dept. of Education of Mass. , 471 U.S. 359 (1985).

SUMMARY OF THE FACTS

The operative facts pertaining to the fundamental “stay put” issue are not in dispute:

1. Pilar is a fifteen year old Agawam resident who is entitled to receive a free, appropriate public education pursuant to 20 U.S.C. § 1400 and M.G.L. c71B. She has multiple mental health diagnoses and a history of related hospitalizations and residential therapeutic educational placements. (P-1, J)

2. For the 2010-2011 academic year Pilar attended the Bromley Brook School in Vermont. Bromley Brook was a year round therapeutic residential school serving students with academic, social, behavioral, and psychological needs similar to Pilar’s. Bromley Brook was not, during the 2010-2011 school year, approved by the Massachusetts Department of Elementary and Secondary Education (“DESE”) to provide special education to Massachusetts students.

3. Agawam reimbursed the Parents for expenses they incurred which were associated with Pilar’s placement at Bromley Brook during the 2010-2011 school year. Agawam also made direct tuition payments to Bromley Brook in connection with Pilar’s attendance there during the 2010-2011 school year. (Parent affidavit)

4. An accepted IEP covering the time period March 8, 2011–March 8, 2012 provides for a year round residential therapeutic educational placement for Pilar. (P-H; S-1; S-3)

5. In late March, 2011 the Parents learned that Bromley Brook would cease operations on July 1, 2011. The Parents notified Agawam in writing of this unexpected development and requested a Team meeting. (Parent affidavit)

6. Agawam convened a Team meeting on May 18, 2011. The Team agreed that Pilar continued to require a full year residential therapeutic special education program with characteristics and services substantially similar to those at Bromley Brook. On May 19, 2011 Agawam requested the Parents’ consent to send referral packets to seven (7) residential programs. The Parents signed the appropriate releases and participated in the referral and admissions procedures for the identified schools. (Parent affidavit, see also: (P-P; P-4; P-T; P-X; S-4; S-7)

7. Agawam did not propose a new IEP or placement as a result of the May 18, 2011 Team meeting.

8. On June 15, 2011 the Parents requested that the Team reconvene to propose a placement which Pilar could attend beginning on July 2, 2011 when Bromley Brook was scheduled to be closed. (P-P)

9. In mid-June the Parents applied to Talisman Academy, a therapeutic boarding school with a student population, social/behavioral supports and academic services similar to those at Bromley Brook. Talisman Academy is not approved by the DESE to provide special education services to Massachusetts students. It is not approved as a private special education school by the State of North Carolina in which it is located. The parties agreed that, apart from its approval status, Talisman Academy is an appropriate special education placement for Pilar.

10. The Parents notified Agawam in writing on June 23, 2011 of their intent to unilaterally enroll Pilar in Talisman Academy when Bromley Brook closed on July 2, 2011. (P-S; P-Q)

11. Pilar began attending Talisman Academy on July 2, 2011.

12. On July 2, 2011 Agawam had not proposed an IEP setting out a substitute placement or program for Pilar.

13. On July 2, 2011 none of the schools to which Agawam had sent referral packets had offered Pilar admission.

14. The Team reconvened on July 25, 2011. Through a Notice dated

August 9, 2011 Agawam proposed sending referral packets to two additional residential programs and a day school with a potential residential option. The Notice stated that the Team would reconvene to determine placement once the referral process had been completed. Agawam did not propose a new IEP, offer interim special education services, or identify an immediately available special education placement as a result of the July 25, 2011 Team meeting. (P-S)

15. To date, the Team has not reconvened and Agawam has not identified a placement in which Pilar’s accepted 2010-2011 IEP could be implemented. At the July 25, 2011 Team meeting Agawam represented that Pilar had been accepted for admission to Germaine Lawrence. The Parents have not received written notice of that admission. (Parent Affidavit)

DISCUSSION

After careful consideration of the parties’ arguments I find that the undisputed facts here compel the conclusion that a therapeutic residential school is Pilar’s “stay put” placement, that Talisman Academy is a therapeutic residential school substantially similar to Bromley Brook and that the Parents are entitled to reimbursement for any expenses associated with Pilar’s unilateral placement at Talisman Academy beginning in July, 2011.

“Stay put” is not an equitable remedy. It is a procedural guarantee. In most circumstances determination of the proper “stay put” placement is mechanistic. The parties implement the last accepted IEP until another one is agreed to or ordered after administrative or judicial intervention. Only when there is true impossibility of performance, as here, does the inquiry become more nuanced. Then the parties, and if necessary the Hearing Officer, must weigh the critical attributes of a proposed substitute for the placement that would have been the statutory/regulatory “stay put” placement had it not ceased to exist.

In determining what constitutes a comparable placement for “stay put” purposes the Hearing Officer does not consider the motivations of or degree of cooperation between the parties. Neither does she consider the fiscal, programmatic or staff resources available to them, or even the hardship that might result to the adult parties from the “stay put” placement. The sole measure is comparability.

The obligation to maintain a student in her last agreed upon placement or, if that placement is no longer available for any reason, to provide a ‘comparable” program, runs to the school not the parents. If the school district sidesteps its statutory responsibility the parents may step into its shoes to ensure that the student continues to receive what had previously been determined to constitute a free, appropriate public education. In that event public funding follows the student in the form of automatic reimbursement of parent expenses. Equitable considerations that influence or result from the parties’ conduct during the “stay put” period become relevant if the parties disagree about the appropriateness of a subsequent IEP that proposes to change the Student’s “stay put” placement. Town of Burlington v. Dept. of Education for the Commonwealth of Mass ., 736 F2d 773 (1st Cir. 1984), aff’d, 471 U.S. 359 (1985). See discussion at Matthew J. v. Dept. of Education , 989 F.Supp.380, 394 (D.Ma. 1998).

The Parties here agree that Pilar requires a full year residential, therapeutic educational program to address her academic, social, behavioral and psychological needs. Agawam supported Pilar’s placement at the Bromley Brook School, a year round, residential therapeutic educational placement not approved by the DESE during the 2010-2011 school year. Bromley Brook is the last publicly supported placement agreed to by the parties. It is, therefore, Pilar’s “stay put” placement.

Bromley Brook closed. As the LEA responsible for ensuring the delivery of a free appropriate public education to Pilar, Agawam is obligated to locate or create a program that will seamlessly provide a setting and services “comparable” to those provided to Pilar by Bromley Brook. Agawam and the Parents had at least three months advance notice of the impending closure. Agawam has not to date proposed or delivered any services or placement designed to meet Pilar’s identified special education needs or to provide special education services “comparable” to those Pilar received while attending Bromley Brook. The Parents took “self help” action, with appropriate notice to Agawam. By unilaterally enrolling Pilar at Talisman Academy, the Parents undertook to provide the continuity of service reflected in the Parties’ agreement that year round educational programming is necessary for Pilar. Indeed, it appears that on July 2, 2011 the Parents had no viable alternative to the Talisman Academy placement. The choice for Pilar on July 2, 2011 was immediate enrollment in Talisman Academy or no special education services at all. The Parties agree that the educational services and setting at Talisman Academy are “comparable” to those previously available to Pilar at Bromley Brook. Therefore, faced with Agawam’s inaction, the Parents have provided an appropriate interim substitute for Bromley Brook.

Agawam’s argument that it cannot support Pilar’s placement at Talisman Academy because it is not approved by the supervising state educational authorities does not explain its failure to offer any appropriate “comparable” program in a timely manner. The U.S. District Court rejected a similar argument in Matthew J. v. Department of Education, 989 F.Supp. 380, 390 (D. Ma. 1998). In that matter the local education authority, Granville, asserted that it could not place the Student in the private, sectarian school in which the parents had unilaterally enrolled him because, among other things, the school was not approved by the Massachusetts Department of Education⁴ to provide special education services. While the District Court was not directly presented with the lack of home state approval that is a factor in Agawam’s argument in the instant case it relied on the Supreme Court’s holding in Florence County School District Four v. Carter, 510 U.S. 7, 11 (1993) to find that the IDEA’s FAPE requirements do not apply to parental placements that otherwise meet the student’s identified learning needs. Extending that line of reasoning I find that the lack of home state approval, in itself, is not an absolute bar to reimbursement for a parental placement in an “unapproved” educational program when, as here, that placement is both necessary and responsive to the Student’s demonstrated learning needs. The Commonwealth’s regulatory preference for placement in DESE approved special education facilities cannot be used to effectively deny a free appropriate public education to an eligible student. 603 CMR 28.06 (3). Where the duty to implement “stay put” and the duty to locate an “approved” placement conflict, the latter must yield to the district’s fundamental obligation to ensure FAPE.

Agawam also relies on the 4th Circuit’s holding in Wagner v. Board of Education of Montgomery County , 335 F.3d 297 (4th Cir. 2008) to assert that a school district is not obligated to observe “stay put” when the change in a student’s then current educational program is not the result of any school district action,⁵ such as, for example, a private school’s closure for fiscal or licensing difficulties. I am not persuaded by that argument. First I note that the “stay put” exception discussed in Wagner is not pertinent here as the parties have submitted the issue to the BSEA – the decision making authority representing the “state” – for resolution. Verhoeven v. Brunswick School Committee , 207 F.3d 7 (1st Cir. 1999) n.30. Second, extrapolating from the 1st Circuit’s treatment of “stay put” in Verhoeven , supra , and consistent with its historical common sense, student-centered approach to resolving issues of special education law, it’s more likely that the 1st Circuit would follow the long line of cases citing Knight v. District of Columbia 877 F.2nd 1025 (D.D.C. 1989) such as Spillsburg v. District of Columbia 307 F.Supp.2nd 22, 26 (D.D.C. 2004) for the proposition that a school district is obligated to provide an eligible student with a placement and services “comparable” or “similar” to that which the parties had most recently agreed was appropriate whenever a student’s placement becomes unavailable.⁶ Furthermore, even were I to accept that 20 U.S.C. §1415 (j) does not apply in the circumstances of this case, Agawam remains responsible under both federal and state law for actual implementation of an accepted IEP. 20 U.S.C. §1414; 34 CFR 300.828; 603 CMR 28.06 (3); 603 CMR 28.05 (7); 603 CMR 18.00. Agawam is not currently implementing the agreed upon IEP for Pilar as it must. The Parents are.

CONCLUSION AND ORDER

Therefore, I find that Pilar’s “stay put” placement under 20 U.S.C. §1415(j) and 603 CMR 28.08 (7) is a year round, residential, therapeutic school as outlined in the accepted March 2011-March 2012 Individualized Education Plan. The placement which had been implementing that IEP, Bromley Brook, is no longer available through no fault of Agawam or the family. Talisman Academy is “comparable” to Bromley Brook. Agawam has not developed an IEP identifying any placement other than Bromley Brook or Talisman Academy capable of implementing its agreed upon terms. Agawam is not meeting its responsibility to implement an accepted IEP and to ensure a free appropriate public education to Pilar. The Parents’ unilateral placement of Pilar at Talisman Academy was necessary, justified, and capable of implementing Pilar’s current IEP. The Parents met all procedural and notice obligations associated with Pilar’s placement at Talisman Academy in July, 2011. The Parents are thus entitled to reimbursement of all expenses associated with Pilar’s attendance at Talisman Academy on a “stay put” basis beginning in July, 2011.

The Motion of the Parents for Designation of Talisman Academy as Pilar’s “Stay Put” placement and for Reimbursement is GRANTED .

By the Hearing Officer

_____________________

Dated: October7, 2011

1

“Pilar” is a pseudonym chosen by the Hearing Officer to protect the privacy of the Student in documents available to the public.

2

See : In Re Uxbridge public Schools , 15 MSER 334 (2010).

3

See eg. Knight by Knight v. District of Columbia , 877 F2d 1025 (DC Cir. 1989), (“if a child’s then-current educational placement is not available, the school system must provide the student with placement in a similar program during the pendency of administrative and judicial proceedings) R.B. ex rel. Parent v. Mastery Charter School , 762 F.Supp.2d 745 (E.D. Pa 2010) (“where a child’s then-current educational placement: is simply no longer available, the LEA retains responsibility for providing the student with placement in a similar program.) Spilsburg v. District of Columbia , 307 F. Supp. 2d 22, 26 (D.D.C.2004) (current educational placement encompasses the whole range of services a child needs not only the physical school building the child attends).

4

MDOE is the forerunner to the currently named “DESE”.

5

Cited with approval in Millay v. Surry School Dept . 584 F.Supp.2nd 219 (D. Maine 2008).

6

I note that state approval was not an issue in any of the aforementioned cases.