Quabbin Regional School District – BSEA # 05-3115 and 05-4356



<br /> Quabbin Regional School District – BSEA # 05-3115 and 05-4356<br />

COMMONWEALTH OF MASSACHUSETTS

BUREAU OF SPECIAL EDUCATION APPEALS

In Re: Quabbin Regional School District BSEA # 05-3115 and BSEA # 05-4356

RULING ON MOTION TO DISMISS, MOTION FOR SUMMARY DECISION AND MOTION TO LIMIT SCOPE OF HEARING

Introduction .

On July 22, 2005, Quabbin Regional School District (Quabbin) filed a Motion to Dismiss, and/or Motion for Summary Decision, or in the alternative a Motion to Limit the Scope of the Hearing (Motion). Parents and Student filed their objection to the Motion on July 29, 2005, and a telephonic Hearing was held on the Motion on August 1, 2005. This Ruling addresses Quabbin’s Motion.1

I note, at the outset, the parties’ respective positions, which they have vigorously presented to the BSEA.2 Parents believe that Quabbin failed to follow many of the procedural requirements relevant to transition planning and services, with the result that Parents and Student have not been given the opportunity to discuss and address these issues in an IEP Team meeting. In addition, they take the position that the transition planning and services offered to their daughter have been inadequate and, as a consequence, she is unprepared to take the next step, which they hope and expect to be post-secondary education. They argue that Quabbin may not graduate their daughter, thereby terminating her eligibility for services.

Quabbin takes the position that it funded three years of placement at a private secondary school (through Student’s senior year), that Student has passed the MCAS and completed her course requirements for a regular high school diploma, and that Student participated in a graduation ceremony at the private school where she received a diploma. Quabbin believes that under these circumstances Student is appropriately graduated from high school, and it should have no further responsibility for Student’s education. Quabbin believes that it has provided to Parents and Student ample notice and opportunity to address transition planning and services and that, in any event, accepted IEPs each year through November 2004, Parents’ and Student’s decision not to participate fully in the IEP Team process and Student’s failure to take advantage of offered transition services preclude any claims for compensatory education.

Procedural History .

On March 15, 2005, Quabbin filed with the Bureau of Special Education Appeals (BSEA) a Hearing Request for the purpose of resolving a dispute regarding public funding of an independent evaluation requested by Student’s parents (Parents). This dispute is BSEA case # 05-3115.

On March 30, 2005, Parents and Student filed with the BSEA their own Hearing Request, asking the BSEA to require Quabbin to fund the independent evaluation, to require Quabbin to convene the IEP Team to consider the findings and recommendations of the evaluator and to require Quabbin to “develop a comprehensive and appropriate Transition Plan tailored to [Student’s] individual needs.” This dispute is BSEA case # 05-4356. On May 3, 2005, the BSEA allowed Quabbin’s request that the two BSEA cases be consolidated.

On June 22, 2005, Parents and Student filed an Amended Hearing Request further outlining their claims and requested relief. On July 8, 2005, Parents and Student filed a Second Amended Hearing Request explaining in greater detail the factual basis of their claims and requested relief. On July 22, 2005, Quabbin filed a challenge to the sufficiency of the Second Amended Hearing Request, and on July 27, 2005, the BSEA found the Second Amended Hearing Request to be sufficient and therefore denied Quabbin’s sufficiency challenge.

Standard for Consideration of Quabbin’s Motion .

Motion to Dismiss : BSEA Rules and the Standard Adjudicatory Rules of Practice and Procedure governing BSEA proceedings provide that a Hearing Officer may allow a motion to dismiss if the moving party fails to state a claim upon which relief may be granted.3 Similarly, the federal courts have concluded that a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) may be allowed if the court finds “beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.”4

Consistent with the legal standards applied by Massachusetts and federal courts with respect to a motion to dismiss , I will deny Quabbin’s Motion to Dismiss if the Second Amended Hearing Request would support relief on any theory of law. Dismissal is inappropriate unless Student and Parents can prove no set of facts in support of their claim. I will consider the allegations in the Second Amended Hearing Request to be true, as well as all reasonable inferences in Student’s and Parents’ favor.5

Motion for Summary Decision : The Executive Office of Administration and Finance adjudicatory rules of practice and procedure allow for a party to file a motion for summary decision when the party is of the opinion that there is no genuine issue of fact relating to all or part of a claim or defense, and that the party is entitled to prevail as a matter of law.6

Further guidance is found by turning to the judicial rules regarding a motion for summary judgment, which set forth a substantially similar standard. The courts have explained that in order for the moving party to prevail on a motion for summary judgment, the moving party must demonstrate that “there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.”7 A fact is material only when its resolution affects the outcome of the case.8 A dispute is genuine if the evidence is such that it could cause a reasonable jury to return a verdict for either party.9 All evidence and inferences are to be viewed in a light most favorable to the nonmoving party.10 The nonmoving party “may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.”11

Motion to Limit the Scope of the Hearing : I understand Quabbin’s Motion to Limit the Scope of the Hearing to be a subset of the Motion to Dismiss/Motion for Summary Decision. In the event that I determine that Quabbin should prevail in part, but not in whole, this would serve to limit the scope of the evidentiary Hearing to the remaining aspects of the dispute.

Facts .

As noted above, with respect to the Motion to Dismiss , I consider the allegations in the Second Amended Hearing Request to be true, as well as all reasonable inferences in the Student’s and Parents’ favor. With respect to the Motion for Summary Decision , I also consider the facts included within Parent’s affidavit (that was filed together with Parents’ and Student’s opposition to Quabbin’s Motion) in order to determine whether there is a genuine issue of fact relating to all or part of a claim or defense. There are additional facts that are undisputed by the parties, also included below.

I find the following facts solely for purposes of ruling on Quabbin’s Motion. In the event that this matter proceeds to an evidentiary hearing on the merits, I will make new findings of fact that will be based solely on the evidentiary record of that hearing and that will be independent of any factual findings in this Ruling.

Student is a nineteen-year-old young woman (date of birth 4/2/86) who until recently attended the White Oak School, a private school for students with language-based disabilities.

Beginning in September 2002, Student was accepted and attended the White Oak School for her sophomore year of high school. Pursuant to IEPs proposed by Quabbin, Student continued to attend White Oak for her junior and senior years of high school, through June 2005. Parents accepted, in full, Quabbin’s proposed IEPs during this time period until Quabbin’s most recent IEP (developed as a result of a Team meeting on December 14, 2004) which Parents rejected.

Quabbin first addressed Student’s transition needs in an IEP dated 11/03 to 11/04. No previous IEP provides for or otherwise addresses Student’s transition plan or need for transition services. Quabbin included a transition plan, similar to that included in the 11/03 to 11/04 IEP, in Student’s most recent IEP, for the period 12/04 to 6/05, which IEP Parents rejected. Quabbin’s transition plan includes a description of instruction that Student is to receive, including remediation of academic skills at White Oak. The transition plan notes that Student has passed the 10 th grade MCAS test and continues to be “on track” to meet her course requirements to graduate in June 2005.

Parent’s affidavit states that the transition plan included in the 11/03 to 11/04 IEP is “filled with inaccuracies” and that she and her husband did not participate in its creation. Parent’s affidavit further states that Quabbin “never informed us about transitional services and planning. Had I known that it should have been incorporated into [Student’s] IEPs, my husband and I would have rejected any IEP that did not include them but should have.” Parent’s affidavit states that she and her husband first learned about transition plans from another parent in October 2004, and that Parents expressed their concern to Quabbin during the December 2004 IEP Team meeting that Quabbin had not informed them regarding Student’s right to transition planning and services.

Parents have represented that Student’s goal has been and continues to be to pursue secondary education. This is reflected within the transition plan in the 11/03 to 11/04 IEP. However, the 12/04 to 6/05 IEP’s transition plan indicates that Student’s plans to pursue post secondary education are “not clear”.

From December 2004 and thereafter, both orally and in writing, Parents informed Quabbin that Student would not be accepting her diploma in June 2005. In June 2005, Student participated in the White Oak graduation ceremony where she accepted her high school diploma. The day following graduation, Quabbin received notice that Parents were returning Student’s diploma to White Oak.

Student appears to have average cognitive ability. Achievement testing in November 2004 indicated weak reading skills (Broad reading at the 2% level) as she has not mastered basic phonics and was unable to recall information accurately. Similarly, math achievement testing revealed significant weakness (Broad math at the 1% level). Language-based weaknesses permeated her profile. She demonstrated difficulty generalizing and applying skills, shifting sets, multi-tasking, organizing and processing information. The evaluation found that she needed to learn basic study skills, develop problem-solving strategies, and learn and use semantic mapping strategies. The evaluation concluded that Student “needs continued academic support in all areas before entering a post-secondary program.”

In a December 29, 2004 letter to Quabbin’s Director of Special Education (Dr. Majoy), Dr. Robert Geggel discussed Student’s progressively worsening chronic cardiac condition which, combined with her learning disabilities, “create major challenges for vocational training and independent support.” Dr. Geggel stated that Student “requires a transitional program to provide multiple support systems to enable her to use life skills, psychological counseling, tutoring, and training so that she can hopefully gain access to sufficient education or vocational training.”

In a document to be shared at a February 3, 2005 Team meeting, Dr. Carolyn West, who has known Student for the past seven years, described Student’s multiple learning disabilities, severe memory deficits, difficulty encoding information, resulting in discomfort, frustration and anxiety, and depression symptomatology. According to Dr. West, Student’s academic skills remained well below functional levels.

On April 11 and May 3, 2005, Student underwent a diagnostic educational evaluation/transition evaluation. The evaluation found Student’s reading fluency to be at the 3 rd percentile, passage comprehension at the 1 st percentile, word attack skills at the 1 st percentile and applied math problems at the 1 st percentile. Student demonstrated significant weaknesses in the area of independent living skills, including money management, time management strategies, health and safety concerns, managing transportation and community participation. The evaluator provided seventeen pages of recommendations detailing intensive literacy, language, assistive technology, and independent living skills training and support. The evaluation was provided to Quabbin on June 3, 2005.

The IEP Team met on June 10, 2005 for the purpose of considering the above-described diagnostic educational evaluation/transition evaluation and to determine whether there would be any changes in Student’s graduation requirements. Prior to allowing Parents or their experts (including the author of the evaluation) to speak, Quabbin’s Director of Special Education, who chaired the meeting, detailed Quabbin’s concerns with this evaluation, stated that Quabbin would not credit the evaluation report and concluded that she could not think of any reason for the IEP Team to change anything in Quabbin’s most recently-proposed IEP (which had already been rejected by Parents) including the Transition Plan within the IEP.

Parents have also recounted Student’s significant difficulties addressing practical tasks such as filling out a job application and learning to drive an automobile.

Transition Planning and Services .

At the heart of this case is a dispute over whether Quabbin has provided to Student an appropriate transition plan, as well as appropriate transition services pursuant to such Plan, in compliance with its obligations under special education law.12

The IDEA sets forth a number of requirements regarding transition planning. The statute begins by defining the term “transition services” as follows:

The term ‘transition services’ means a coordinated set of activities for a student with a disability that —
(A) is designed within an outcome-oriented process, which promotes movement from school to post-school activities, including post-secondary education, vocational training, integrated employment (including supported employment), continuing and adult education, adult services, independent living, or community participation;

(B) is based upon the individual student’s needs, taking into account the student’s preferences and interests; and

(C) includes instruction, related services, community experiences, the development of employment and other post-school adult living objectives, and, when appropriate, acquisition of daily living skills and functional vocational evaluation.13

The federal DOE regulations similarly define the term “transition services” using language virtually identical to the statute, but also add the following clarification:

Transition services for students with disabilities may be special education, if provided as specially designed instruction, or related services, if required to assist a student with a disability to benefit from special education.14

The parties do not dispute that these definitions define the nature and scope of services to be provided by Quabbin to Student.

A student’s “individualized education program” (IEP) is a written statement that includes the special education and related services to be provided to the student, as well as the anticipated frequency, location, and duration of those services.15 The statutory definition of FAPE also makes clear that the IEP is the vehicle pursuant to which FAPE is implemented.16

The IDEA requires that a school district address a student’s need for transition services through the IEP. The IDEA makes this clear by explaining that the IEP is to include:
(I) beginning at age 14, and updated annually, a statement of the transition service needs of the child under the applicable components of the child’s IEP that focuses on the child’s courses of study (such as participation in advanced-placement courses or a vocational education program);

(II) beginning at age 16 (or younger, if determined appropriate by the IEP Team), a statement of needed transition services for the child, including, when appropriate, a statement of the interagency responsibilities or any needed linkages; . . . .17

The federal DOE regulations include the above requirements, as well as additional requirements regarding participation of the student in the planning process:

Transition services participants .
(1) Under paragraph (a)(7) of this section, the public agency shall invite a student with a disability of any age to attend his or her IEP meeting if a purpose of the meeting will be the consideration of—

(i) The student’s transition services needs under §300.347(b)(1); or

(ii) The needed transition services for the student under §300.347(b)(2); or

(iii) Both.

(2) If the student does not attend the IEP meeting, the public agency shall take other steps to ensure that the student’s preferences and interests are considered.18

The federal regulations further require that the school district provide explicit notice to parents with respect to transition planning and services as part of the notice that is sent to parents advising them of each IEP Team meeting:

For a student with a disability beginning at age 14, or younger, if appropriate, the notice [of Team meeting] must also—
(i) Indicate that a purpose of the meeting will be the development of a statement of the transition services needs of the student required in §300.347(b)(1); and

(ii) Indicate that the agency will invite the student.

(3) For a student with a disability beginning at age 16, or younger, if appropriate, the notice must—

(i) Indicate that a purpose of the meeting is the consideration of needed transition services for the student required in §300.347(b)(2);

(ii) Indicate that the agency will invite the student; and

(iii) Identify any other agency that will be invited to send a representative.19

As part of its “Notice of Interpretation” of its regulations, the federal DOE has provided the following additional guidance regarding transition planning and services:

III. Preparing Students With Disabilities for Employment and Other Post-School Experiences

One of the primary purposes of the IDEA is to “… ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for employment and independent living…” (§300.1(a)). . . .

Similarly, one of the key purposes of the IDEA Amendments of 1997 was to “promote improved educational results for children with disabilities through early intervention, preschool, and educational experiences that prepare them for later educational challenges and employment.” (H. Rep. No. 105-95, p. 82 (1997); S. Rep. No. 105-17, p. 4 (1997)).

Thus, throughout their preschool, elementary, and secondary education, the IEPs for children with disabilities must, to the extent appropriate for each individual child, focus on providing instruction and experiences that enable the child to prepare himself or herself for later educational experiences and for post-school activities, including formal education, if appropriate, employment, and independent living. . . .

Although preparation for adult life is a key component of FAPE throughout the educational experiences of students with disabilities, Part B sets forth specific requirements related to transition planning and transition services that must be implemented no later than ages 14 and 16, respectively, and which require an intensified focus on that preparation as these students begin and prepare to complete their secondary education.

11. What must the IEP team do to meet the requirements that the IEP include “a statement of … transition service needs” beginning at age 14 (§300.347(b)(1)(i)),” and a statement of needed transition services” no later than age 16 (§300.347(b)(2)?

The Committee Reports on the IDEA Amendments of 1997 make clear that the requirement added to the statute in 1997 that beginning at age 14, and updated annually, the IEP include “a statement of the transition service needs” is “… designed to augment, and not replace,” the separate, preexisting requirement that the IEP include, “… beginning at age 16 (or younger, if determined appropriate by the IEP team), a statement of needed transition services …” (H. Rep. No. 105-95, p. 102 (1997); S. Rep. No. 105-17, p. 22 (1997)). As clarified by the Reports, “The purpose of [the requirement in §300.347(b)(1)(i)] is to focus attention on how the child’s educational program can be planned to help the child make a successful transition to his or her goals for life after secondary school.” (H. Rep. No. 105-95, pp. 101-102 (1997); S. Rep. No. 105-17, p. 22 (1997)). The Reports further explain that “[F]or example, for a child whose transition goal is a job, a transition service could be teaching the child how to get to the job site on public transportation.” (H. Rep. No. 105-95, p. 102 (1997); S. Rep. No. 105-17, p. 22 (1997)).

Thus, beginning at age 14, the IEP team, in determining appropriate measurable annual goals (including benchmarks or short-term objectives) and services for a student, must determine what instruction and educational experiences will assist the student to prepare for transition from secondary education to post-secondary life.

The statement of transition service needs should relate directly to the student’s goals beyond secondary education, and show how planned studies are linked to these goals. For example, a student interested in exploring a career in computer science may have a statement of transition services needs connected to technology course work, while another student’s statement of transition services needs could describe why public bus transportation training is important for future independence in the community.

Although the focus of the transition planning process may shift as the student approaches graduation, the IEP team must discuss specific areas beginning at least at the age of 14 years and review these areas annually. . . .

Thus, while §300.347(b)(1) requires that the IEP team begin by age 14 to address the student’s need for instruction that will assist the student to prepare for transition, the IEP must include by age 16 a statement of needed transition services under §300.347(b)(2) that includes a “coordinated set of activities …, designed within an outcome-oriented process, that promotes movement from school to post-school activities ….” (§300.29) . . . .

12. Must the IEP for each student with a disability, beginning no later than age 16, include all “needed transition services,” as identified by the IEP team and consistent with the definition at §300.29, even if an agency other than the public agency will provide those services? What is the public agency’s responsibility if another agency fails to provide agreed-upon transition services?

Section 300.347(b)(2) requires that the IEP for each child with a disability, beginning no later than age 16, or younger if determined appropriate by the IEP team, include all “needed transition services,” as identified by the IEP team and consistent with the definition at §300.29, regardless of whether the public agency or some other agency will provide those services. . . .

If an agreed-upon service by another agency is not provided, the public agency responsible for the student’s education must implement alternative strategies to meet the student’s needs. This requires that the public agency provide the services, or convene an IEP meeting as soon as possible to identify alternative strategies to meet the transition services objectives, and to revise the IEP accordingly. . . .

However, the fact that an agency other than the public agency does not fulfill its responsibility does not relieve the public agency of its responsibility to ensure that FAPE is available to each student with a disability. (Section 300.142(b)(2) specifically requires that if an agency other than the LEA fails to provide or pay for a special education or related service (which could include a transition service), the LEA must, without delay, provide or pay for the service, and may then claim reimbursement from the agency that failed to provide or pay for the service.)20

The federal DOE Office of Special Education Programs (OSEP) further addressed several of these same points in a letter to Congressman Moore. OSEP noted:

One of the key purposes of the IDEA Amendments of 1997 was to “promote improved educational results for children with disabilities through early intervention, preschool, and educational experiences that prepare them for later educational challenges and employment.” (H. Rep. No. 105-95, p. 82 (1997); S. Rep. No. 105-17, p. 4 (1997)). Thus, throughout preschool, elementary, and secondary education, the IEPs for children with disabilities must, to the extent appropriate for each individual child, focus on providing instruction and experiences that enable the child to prepare himself or herself for later educational experiences and for post-school activities, including formal education, if appropriate, employment, and independent living.21

Transition planning and services have been addressed in federal district court decisions and hearing officer decisions, in which the purpose and scope of the transition planning and services are discussed.22 See written argument of Parents and Student for further discussion of several of these decisions. The United States Supreme Court has also noted that Congress passed the IDEA, in part, so that students with disabilities could “achieve a reasonable degree of self-sufficiency” and “become a contributing part of our society.”23

As one court explained, failure to provide appropriate transition planning and services may result in an order to re-convene the IEP Team and develop a plan to provide specific services, with accompanying goals and objectives:

The District’s “Transition Plan” for Tracy does not satisfy any of the statutory or regulatory mandates, and the District’s failure to understand its own responsibilities obviously contributed to the District’s failure to inform the Schramms adequately of the nature and scope of transition services available to Tracy. The administrative record and the supplementary evidence show beyond doubt that Tracy is a student who needs specialized instruction and community experiences in each component area of transition services to enable her to achieve her goal of postsecondary education. The Court will require the District to convene a transition-planning meeting for Tracy at which and after which the District will provide leadership in planning and implementing necessary transition services for Tracy in compliance with IDEA statutes and regulations and this opinion. The IEP and transition plan must include specific goals and objectives as required by IDEA statutes and regulations.24

I summarize the above-cited federal statute, federal regulations, DOE commentary and letters, and judicial and administrative decisions as follows. Transition planning and services are an essential and substantive part of what must be provided by a school district to a special education student over the course of many years, beginning when the student turns 14 years old, or earlier.25 As compared to other educational services (which under FAPE must be reasonably calculated to provide a certain minimum level of educational progress in light of the student’s potential to learn), transitional planning and services are “an outcome-oriented process” focused on allowing the student to transition successfully “from school to post-school activities, including post-secondary education, vocational training, integrated employment (including supported employment), continuing and adult education, adult services, independent living, or community participation”.26 As with other educational services under FAPE, transitional planning and services must be individually tailored to address the needs of the particular student but there is an added emphasis on consideration of the student’s own preferences and interests.27 The IDEA provides that in the event that the student does not attend an IEP Team meeting, the School District is to take additional steps to ensure that the student’s preferences and interests are considered.28 As with other services under FAPE, transitional services may include instruction, including special education services, as well as related services.29 Finally, I note the specific requirements regarding written notice to parents when the IEP Team is to consider transitional planning and/or services.30

Considering the allegations in the Second Amended Hearing Request to be true, as well as all reasonable inferences in the Student’s and Parents’ favor, I find that Parents and Student have provided a factual basis for concluding that Quabbin was deficient with respect to its obligations to provide Student and her Parents with appropriate transitional planning and services, as well as the procedural requirements relative to transitional planning and services.

For example, Parents and Student have alleged facts that may support findings that there was no notice to Parents regarding transitional planning and services over a course of five years (age 14 through 19), there was no appropriate consideration by the IEP Team of transitional planning and/or services over a course of four or five years, Parents and Student have never had an opportunity to participate in transition planning, there were no appropriate transitional plans or services developed over this five year period, there was no timely referral under chapter 688, and the transitional services offered or provided were sufficiently deficient that Student is presently unable to begin post-secondary education, work or independent living because of her demonstrated difficulties with activities of daily living, her lack of ability to self-advocate, and her limited academic skills.

Parents and Student have also made factual allegations, which if proved to be true at an evidentiary hearing, may indicate that Quabbin violated Parents’ procedural rights during the June 10, 2005 IEP Team meeting where Quabbin allegedly did not allow Parents and their evaluator to participate prior to Quabbin’s determining the outcome of the meeting. Parents and Student have also made factual allegations that Quabbin limited the participation of Student and her Parents at a February 3, 2005 Team meeting.

Because the various procedural violations implicate Parents’ and Student’s ability to participate in the Team meeting, Parents may be entitled to relief, which may possibly include setting aside one or more IEPs, and any transition planning and services included within them.31

For these reasons, I conclude that Parents and Student have stated claims upon which relief may be granted and that there remain significant and material factual issues in dispute.

However, it is also apparent, as will be discussed below, that even if Parents’ asserted facts are fully credited, Quabbin has several possible defenses that may possibly limit or deny Parents’ and Student’s claims. I therefore turn to a discussion of Quabbin’s three principal defenses – graduation, accepted IEPs and the statute of limitations – as well as other possible defenses raised in Quabbin’s written and oral arguments.

Graduation .

Quabbin has taken the position, and Parents and Student have not argued to the contrary, that Student has passed her MCAS examinations and has satisfied Quabbin’s course requirements for a regular education high school diploma. As a result of satisfying these graduation standards, Quabbin argues that Student has appropriately graduated from high school and by virtue of this graduation, is no longer eligible for special education services, including transition planning and services.32

I note, at the outset, the importance of the graduation decision for a special education student, as explained by a federal district court judge, not only because it signifies a certain level of academic accomplishment but also because it ends any right to further services as a special education student:

The purpose of the IDEA is to prevent schools from excluding disabled children from receiving an adequate education. See Rowley, 458 U.S. at 179. A school can exclude disabled children through a variety of methods, such as by ignoring them, expelling them, suspending them or graduating them. Because graduation entails the transmission of a diploma and some measure of pomp and circumstance does not inoculate graduation from the possibility that it is simply another form of illegal exclusion. In fact, graduation is probably the most dire form of exclusion because it potentially renders a person ineligible for future educational aid under the IDEA.33

It is well settled that if properly graduated from high school with a regular high school diploma, Student’s right to prospective services as a special education student terminates, including her right to transition planning and services.34

Parents and Student take the position that Student should not be considered to be graduated from high school and therefore retains her eligibility for prospective special education services, and further that even if one were to consider Student to have graduated, this does not limit her right to compensatory services. I will address each of these positions.

Courts have consistently held that a student’s graduation (or the student’s reaching his/her 22 nd birthday) does not, by itself, extinguish any claims for compensatory services.35 I have previously ruled on this issue and therefore need not repeat the analysis here.36 For these reasons, I conclude that Quabbin’s graduation of Student may not be used as a defense against Student’s and Parents’ claims for compensatory services.

The more difficult question to decide is whether Student may be considered to have graduated from high school, thereby terminating her right to any prospective services as a person eligible to receive special education services under state and federal special education law. To address this question, I consider the standards that must be met prior to a school district graduating a student.

In one of the earliest decisions to address graduation of special needs students, the Massachusetts Supreme Judicial Court found that graduation was a change of placement, triggering certain procedural protections. The Court further addressed the question of what standards must be met in order to graduate as follows:

Stock urges this court to set standards for the attainment of a “high school diploma or its equivalent,” the achievement of which terminates eligibility for special education services under G.L. c. 71B, 1 & 3. This we cannot do. Academic standards are matters peculiarly within the expertise of the department and of local educational authorities, and are at present regulated. 603 Code Mass. Regs. 40.00 (1979). It is sufficient that the trial judge found, and the record supports, that Stock would be incapable of attaining, by age twenty-two, sufficient learning and skills to merit the award of a high school diploma under existing standards. From this it follows inescapably that conferring a diploma upon the plaintiff at the age of eighteen was substantively inappropriate.37

In its Administrative Advisory SPED 2002-4 – REVISED, the Mass. Department of Education addressed the question of what state and local standards must be met by certain special education students to graduate. The Advisory relates to Massachusetts students who are receiving a publicly-funded education in an out-of-district day or residential school, having been placed in the school by a Massachusetts school district under special education law, which are the circumstances of the Student in the present dispute. The Advisory provides, in relevant part:

The standards for award of the high school diploma include requirements set by the district and state standards including, as of 2003, the competency determination standard.38

I assume, for purposes of this Ruling, that Student has met the relevant state and school district standards for graduation by passing the MCAS and completing the courses required by Quabbin for graduation. However, several federal courts and Hearing Officers that have considered this issue have concluded that although meeting state and local standards is necessary for a student to graduate, it may not always be sufficient.

Several federal courts have explained that for a student with a disability under the IDEA to graduate, the student must meet the general graduation requirements (applicable to general education students) and must also make progress on or complete the IEP goals and objectives, or otherwise complete a student’s IEP requirements; and a School District’s decision to graduate a student may be rescinded if it was based only on his accumulation of required credits and did not reflect sufficient progress on his IEP goals and objectives.39 I take these court decisions to mean that the state and local standards determine when a student may be said to have completed the requisite course and examination requirements for graduation, but a school district may nevertheless have to provide a certain minimum level of special education services before it will be allowed to terminate eligibility for further special education services by graduating the student.40

Although courts have apparently not considered the precise question presented by the instant dispute (that is, whether allegedly inadequate transition planning and services may prevent a school district from graduating a student who meets the state and local graduation standards), several Hearing Officers have addressed this issue. California Hearing Officers have concluded that because the IDEA does not contemplate the provision of special education or related services beyond graduation, a prerequisite to awarding a valid diploma to a special education student is that adequate transition planning and services have been provided.41 A Massachusetts Hearing Officer has also stated that a Hearing Officer “may declare a regular diploma invalid” where the school district has failed to provide a transition plan.42 I am aware of no other judicial or administrative decisions that have ruled on this specific issue.

I agree with the California and Massachusetts Hearing Officers. As discussed in more detail in this Ruling above, as compared to other special education and related services that are intended to result in meaningful and effective progress across a range of educational objectives, transition planning and services are focused on a single purpose – that is, to provide a student with an opportunity at the end of his/her secondary education to transition successfully to whatever is the next step in that particular person’s life, whether it be post-secondary education, independent living, etc. The transition services are to be developed through an “outcome-oriented process”. Transition services may be special education or related services, with no explicit limit placed on the amount or duration of transition services to be provided so long as the student remains eligible for special education and is in need of those services. Congress has made clear the importance of these services under the IDEA.

It seems self-evident that, at least for some special education students, the required high school courses and MCAS scores may bear little relevance to a particular student’s need for transitional planning and services. In the present dispute, for example, Student and Parents have alleged that Student’s need for transition planning and services has not been addressed through her completion of high school course requirements and passing the MCAS examination. As explained in greater detail above, through their Second Amended Hearing Request and affidavit, Student and Parents have alleged facts that, if fully credited, reflect a pervasive failure to provide adequate transition planning and services, and have further made factual allegations that, again if fully credited, indicate that as a result of Quabbin’s failures, Student lacks many basic academic and practical skills necessary to make a successful transition from high school. Parents and Student also take the position that these failures are reflected in a lack of progress in Student’s goals and objectives in her IEP.

In light of the above-described purpose (as well as the scope, potential duration and importance) of transition planning and services and in light of Parents’ and Student’s allegations (which must be fully credited at this juncture in the process), I find that graduation would prematurely end Student’s right to receive important, prospective services that are required to be provided under the IDEA but are not necessary in order to satisfy Quabbin’s high school course requirements. As one federal district court judge noted, where a special education student’s transition goal is to pursue post-high school education, an “adequate high school education is inextricably linked to a successful transition to post-secondary education”.43

I further find that even were I to agree with Quabbin that Student is appropriately graduated from high school, Student’s graduation is not a defense to Parents’ and Student’s claims to compensatory education.

Accepted IEPs .

It is not disputed that all IEPs relative to transition plans and services in contention in this case were accepted by Parents, except for Quabbin’s most recently-proposed IEP which was rejected. Quabbin takes the position that Parents and Student are foreclosed from raising any claims before the BSEA relative to these IEPs, including claims relative to the adequacy of transition plans and services, because the IEPs were accepted by Parents and fully implemented by Quabbin.

There is support for Quabbin’s position in case law and in decisions by BSEA Hearing Officers with respect to accepted IEPs.44 Although I believe that Quabbin’s position is correct as a general rule, I am not prepared to accept it in all situations.

Federal regulations under the IDEA define a parent’s consent to include that the “parent has been fully informed of all information relevant to the activity for which consent is sought”.45 The First Circuit has found this regulatory definition of consent to apply to a parent’s consent to (or acceptance of) an IEP.46

Through their Second Amended Hearing Request and affidavit, Parents have alleged that Quabbin never informed them of the right to transition planning and services. Even when these services were discussed (apparently for the first time, according to Parents) at the IEP Team meeting that developed the IEP for the time period 11/03 to 11/04, Parents take the position that it was they, and not the School District personnel, who initiated the discussion and that even during these discussions, Quabbin did not inform Parents that Student had a right to transition planning and services. Parents allege that if Quabbin had properly apprised them of their right to transition planning and services, Parents would have rejected each of the accepted IEPs. Parents further allege that Quabbin has never provided the notice (as part of the notice to parents of the time and date of a Team meeting) that the Team meeting would address transition planning and/or services even though such notice of transition planning/services is explicitly required by federal special education regulations. Parents further allege that the Parent’s Rights Brochure provided to them by Quabbin includes no notice of transition planning or services.47 Quabbin disputes these contentions.

I find that Parents have raised significant and material factual disputes relative to whether they were been “fully informed of all information relevant to the activity for which consent is sought” as required for there to be valid consent pursuant to the federal special education regulations, thereby bringing into factual dispute the consent of Parents to each of the accepted IEPs in contention.

For this reason, I am unable to determine at this juncture in the proceedings whether the accepted IEPs provide a valid defense to Student’s and Parents’ claims for compensatory relief.

Statute of Limitations .

Although IDEA 2004 includes a two-year statute of limitation that Quabbin referenced in its argument, there does not appear to be any significant dispute that the IDEA in effect prior to the 2004 amendments applies because Parents and Student filed their hearing request prior to July 1, 2005.

It is generally accepted that for hearing requests filed prior to July 1, 2005, a three year statute of limitations applies.48 Therefore I may not consider any of Parents’ and Student’s claims prior to March 30, 2002 – that is, three years prior to Parents’ and Student’s filing their hearing request with the BSEA on March 30, 2005.

I therefore allow Quabbin’s Motion to Limit the Scope of the Hearing in this respect.

Quabbin’s other arguments .

Quabbin claims that equitable considerations would bar Parents’ and Student’s claims for compensatory relief. Quabbin urges me to assess the conduct of the parties to determine its impact upon this relief. I need not review here the specific factual allegations made by Quabbin in support of this defense. It is sufficient to note that both parties have made factual allegations that, if credited, would support an argument that the equities run in their favor. Resolution of Quabbin’s claim regarding equitable considerations must wait for an evidentiary hearing.

Quabbin takes the position that Parents’ and Student’s decision not to participate fully in the IEP Team process and Student’s failure to take advantage of offered transition services preclude any claims for compensatory education. It is sufficient to note that Parents and Student dispute these factual allegations. Resolution of these disputed issues must wait for an evidentiary hearing.

Quabbin claims that Parents’ and Student’s proposed relief – reimbursement for Parents’ unilateral placement of Student at the Berkshire Center – is improper because Berkshire Center is a post-secondary educational facility and therefore by its very nature demonstrates that Student is able to be placed successfully into post-secondary education and, as a post-secondary program, can not be paid for by Quabbin. It is sufficient to note that Parents and Student allege that the Berkshire Center is not a post-secondary program and further allege that it is specifically designed to address the needs of young adults with learning differences who have not attained the necessary skills to succeed in a post-secondary and/or work environment. Resolution of Quabbin’s claim must wait for an evidentiary hearing.

Finally, Quabbin claims that Student is no longer a resident of any of the towns included in Quabbin because she moved to the town of Lee. It is sufficient to note that Parents and Student have alleged that Student currently lives with her Parents within the Quabbin Regional School District and that Student only temporarily resided in Lee for 3 ½ to 4 weeks. Resolution of Quabbin’s claim must wait for an evidentiary hearing. I also note that rights to compensatory claims are not contingent on continuing residence in the Quabbin School District.

Order

Quabbin’s Motion to Limit the Scope of the Hearing is ALLOWED to the extent that I will not consider any of Parents’ and Student’s claims prior to March 30, 2002 because of the three-year statute of limitations.

In all other respects, Quabbin’s Motion to Dismiss, and/or Motion for Summary Decision, or in the alternative a Motion to Limit the Scope of the Hearing is DENIED.

This case will proceed to Hearing, as previously scheduled, on September 19, 20, 22 and 23, 2005, with the first three hearing days at Catuogno offices in Worcester and the fourth hearing day at Catuogno offices in Springfield. As previously discussed with the parties and as reflected in previous scheduling Orders, each party shall complete the presentation of its case (including a reasonable amount of cross-examination by the opposing party) within two hearing days so that the Hearing will be completed by the end of the day on September 23 rd .

By the Hearing Officer,

_________________

William Crane

Date: August 16, 2005


1

I do not, however, address Quabbin’s Motion relative to reimbursement for Parents’ independent evaluation. As discussed during the August 1, 2005 Motion Hearing, it is not clear whether the parties have a disagreement regarding this issue. After his discussions with the attorney for Quabbin to seek to resolve this issue, the attorney for Parents and Student should advise me if this issue remains in dispute and, if so, the nature of the dispute and requested relief.


2

I note the comprehensive, well-researched and articulate oral and written arguments made by both parties. Parents and Student are represented by Peter Smith. Quabbin is represented by Gina Yarbrough.


3

BSEA Rule 17B3; 801 CMR 1.01(7)(g)3.


4

Conley v. Gibson , 355 US 41, 45-46 (1957); Roeder v. Alph Indus ., 814 F.2d 22, 25 (1 st Cir. 1987).


5

See Caleron-Ortiz v. LaBoy-Alvarado , 300 F.3d 60 (1st Cir. 2002) (“accepting as true all well-pleaded factual averments and indulging all reasonable inferences in the plaintiff’s favor” a motion to dismiss will be denied if recovery can be justified under any applicable legal theory); Whitinsville Plaza, Inc. v. Kotseas , 378 Mass. 85, 89 (1979); Nader v. Citron , 372 Mass. 96, 98 (1977).


6

801 CMR 1.01(7)(h).


7

Celotex Corp. v. Catrett, 477 US 317, 322 (1986) (quoting Fed.R.Civ.P. 56(c)). See also Pederson v. Time, Inc . 404 Mass. 14, 16-17 (1989).


8

Anderson v. Liberty Lobby, Inc., 477 US 242, 248 (1986).


9

Id. at 252.


10

Anderson v. Liberty Lobby, Inc., 477 US 242, 255 (1986); Hub Associates v. Good , 357 Mass. 449, 451 (1970).


11

Fed.R.Civ.P. 56(e).


12

For purposes of this dispute, the parties are in agreement that the applicable law is the Individuals with Disabilities Education Act (IDEA) prior to the amendments that became effective on July 1, 2005.


13

20 USC 1401(30).


14

34 CFR 300.29(b).


15

20 USC 1414(d)(A)(iii) and (vi).


16

33 USC 1401(8). See also Honig v. Doe, 484 U.S. 305, 311 (1988) (IEP is the “primary vehicle” for the IDEA’s implementation).


17

20 USC 1414(d)(1)(A)(vii).


18

34 CFR 300.344(b).


19

34 CFR 300.345(b)(2).


20

64 Fed. Reg. 12474-12475 (March 12, 1999) (emphasis in original).


21

Letter to Moore , 39 IDELR 189 (OSEP 2002).


22

Elizabeth M. v. William S. Hart Union High School District , Case No. SACV 03-0877 CJC (CWx), 2003 U.S. Dist. Lexis 25786 (C.D.Ca. 2003) (“in order to adequately prepare a student to transition to post-secondary education, it is necessary for the school district to take appropriate steps to assure that the student has the basic academic skills necessary to perform work at the college level”); J.B. v. Killingly Board of Education, 990 F.Supp. 57 (D.CT 1997) (student “could receive instruction in community living and social skills, including daily living skills, appropriate behavior, socialization, and working skills, as part of his transition services”); Yankton School District v. Schramm , 900 F.Supp. 1182 (D.S.D. 1995) (“Transition services are ‘aimed at preparing students (soon to leave school) for employment, postsecondary education, vocational training, continuing and adult education, adult services, independent living, or community participation.’”) (emphasis in original), aff’d 93 F.3d 1369 (8 th Cir. 1996); Whitehall-Coplay School District , 37 IDELR 39 (SEA PA 2002) (transition plan must include “a coordinated set of activities, services, and experiences designed to narrow the gap between [student’s] current functioning and the demands of the chosen environment” such as college, work or community in which student is likely to spend her early adult life); Livermore Valley Joint Unified School District , 33 IDELR 288 (CA SEA 2000) (transition planning and services considered to be an essential part of student’s prescribed course of study) ; Student v. Novato Unified School District, SN 886-94 , 22 IDELR 1056 (CA SEA 1995) ( IDEA mandates regarding transition planning and services “create a separate substantive entitlement”); Yankton School District , 21 IDELR 772 (South Dakota SEA 1994) (“transitional services such as are requested by TS’s parents can stand alone as a special education program”).


23

Hendrick Hudson Dist. Bd. of Educ. v. Rowley , 458 U.S. 176, 201 n.23 (1982).


24

Yankton School District v. Schramm , 900 F.Supp. 1182 (D.S.D. 1995).


25

20 USC 1414(d)(1)(A)(vii).


26

20 USC 1401(30).


27

20 USC 1401(30).


28

34 CFR 300.344(b).


29

34 CFR 300.29(b).


30

34 CFR 300.345(b)(2).


31

The First Circuit Court of Appeals has cautioned that although “Courts must strictly scrutinize IEPs to ensure their procedural integrity, . . . procedural flaws do not automatically render an IEP legally defective.” But, the Court went on to explain that there is justification to set aside an IEP if the school district “seriously hampered the parents’ opportunity to participate in the formulation process.” (Citations omitted.) Roland M. v. Concord School Committee , 910 F.2d 983, 994 (1 st Cir. 1990).


32

Quabbin also seeks to rely upon Student’s participation in the White Oak graduation ceremony. However, facts alleged by Parents (which I assume to be true for purposes of this Ruling) indicate that Parents had previously made clear that Student was participating in the graduation ceremony rather than accepting a diploma for purposes of graduating from high school.


33

Robert Bell v. Education in the Unorganized Territories , 33 IDELR 184 (D.ME. 2000).


34

34 CFR 300.122(a)(3)(i); MGL c. 71B, s.1 (definition of “school age child”).


35

E.g., Zobrest v. Catalina Foothills School District , 113 S.Ct. 2464 (1993); Frazier v. Fairhaven School Committee , 276 F.3d 52 (1 st Cir. 2002); Pihl v. Mass. Dep’t of Educ ., 9 F.3d 184, 188-89 & n.8 (1st Cir. 1993).


36

In Re: Newton Public Schools and Mass. Dept. of Education , 6 MSER 56 (SEA MA 2000).


37

Stock v. Massachusetts Hospital School, 467 N.E. 2d 448, 392 Mass. 205 (1984), cert. denied, 474 U.S. 844 (1985).


38

Mass. Dept. of Education Administrative Advisory SPED 2002-4 – REVISED which is found at:
http://www.doe.mass.edu/sped/advisories/02_4.html


39

Kevin T. v. Elmhurst Community School Dist. No. 205 , 2002 U.S. Dist. LEXIS 4645, 36 IDELR 153 (N.D.Ill. 2002) ( “To graduate a student with a disability under the IDEA, the student must meet the general graduation requirements and make progress on or complete the IEP goals and objectives.” ); Chuhran v. Walled Lake Consol. Sch., 839 F.Supp. 465, 474 (E.D.Mich.1993) (“In order to graduate a student with a disability, the student must complete his IEP requirements and otherwise meet requirements for general graduation. “), aff’d , 51 F.3d 271 (6th Cir.1995).


40

Quabbin cites to a number of OSEP and OCR letters that stand for the proposition that establishment of proficiency standards for a high school diploma is a state function. I find these letters consistent with the above analysis. E.g., Letter to Anonymous , 25 IDELR 632 (1996). Quabbin has also cited to several Hearing Officer decisions that support the conclusion that a student should graduate if he or she has met the state and local graduation requirements. However, only one of the cited decisions provides an analysis of the issue and that decision ( Hamilton County Schools , 23 IDELR 772 (SEA TN 1997)) stands for the proposition, with which I agree, that a student does not have to “meet” his IEP goals and objectives in order to graduate.


41

Livermore Valley Joint Unified School District , 33 IDELR 288 (CA SEA 2000); Student v. Novato Unified School District, SN 886-94 , 22 IDELR 1056 (CA SEA 1995).


42

In Re: Carver Public Schools , BSEA # 00-2574, 7 MSER 167, 170 (SEA MA 2001) (Beron, Hearing Officer).


43

Elizabeth M. v. William S. Hart Union High School District , Case No. SACV 03-0877 CJC (CWx), 2003 U.S. Dist. Lexis 25786 (C.D.Ca. 2003).


44

Independent School District No. 432, Mahnomen School v. J.H ., 8 F.Supp.2d 1166, 28 IDELR 427 (D.Minn. 1998) (acceptance of IEP precluded Hearing Officer from considering its appropriateness); In Re: Sharon Public Schools , 8 MSER 51, 67 (MA SEA 2002) (Crane, Hearing Officer); In Re: Carver Public Schools , 7 MSER 167, 179 (MA SEA 2001) (Beron, Hearing Officer).


45

34 CFR 300.500(b)(1)(i).


46

G.D. v. Westmoreland School District , 930 F.2d 942, 944 (1 st Cir. 1991). See also W.B. v. Matula , 67 F.3d. 484 (3 rd Cir. 1995) (court should inquire into the totality of the circumstances surrounding execution of an agreement waiving claims relevant to the IDEA, and should decline to enforce the agreement unless its execution was knowing and voluntary); Shawsheen Valley Regional Vocational Technical School Committee v. Commonwealth of Massachusetts Bureau of Special Education Appeals , 367 F.Supp.2d 44 (D.Mass. 2005) (court considered whether parents had sufficient knowledge or understanding of their rights to consent to IEP).


47

The copy of the Parent’s Rights Brochure provided to me by Parents’ and Student’s attorney appears to include only the following (possibly) relevant sentence (middle of the first page of the Brochure ): “As the student grows older, he or she begins to have rights to participate in the Team process and in planning for transition to adult life.”


48

In Re: Fall River Public Schools , BSEA # 00-0771, 5 MSER 183 (1999).


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