Randolph Public Schools – BSEA # 08-0925

Randolph Public Schools – # 08-0925

COMMONWEALTH OF MASSACHUSETTS

SPECIAL EDUCATION APPEALS

In Re: Randolph Public Schools

BSEA #08-0925

DECISION

This decision is issued pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C., § 1400 et seq ; Section 504 of the Rehabilitation Act of 1973 (29 U.S.C., §794); the Massachusetts special education statute or “Chapter 766,” (M.G.L. c. 71B) and the Massachusetts Administrative Procedures Act (M.G.L. c. 30A), as well as the regulations promulgated under these statutes.

Briefly stated, the issue here is whether “stay put” principles require the Randolph Public Schools to reimburse Parents for certain costs associated with a placement at the private Winchendon School where (1) in the course of settling two consolidated BSEA appeals during 2006, the parties had agreed to change Student’s placement to a different private school (the Victor School), the parties and their counsel, respectively, had signed an IEP placement page and letter to that effect, but the parties did not execute a final settlement agreement and (2) Student only attended the Victor School for one day before returning to the Winchendon School.

Parents initiated the current appeal by filing a request for hearing on August 18, 2007. At the parties’ requests, the hearing was postponed multiple times to enable the parties to clarify the issues, file and argue prehearing motions, and the like. An evidentiary hearing took place on April 29, 2008 at the office of the Bureau of Special Education Appeals in Malden, MA. Both parties were represented by counsel and had the opportunity to examine and cross-examine witnesses. At the parties’ request, the parties were granted a postponement to file written closing arguments postmarked May 9, 2008. The BSEA received the written closing arguments and closed the record on that date.

Those present for all or part of the proceeding were:

Student’s Mother

Student’s Father

Student

Dr. Katherine LeTourneau Assistant Superintendent (Ret.), Randolph Public Schools

Dr. Lorri Ventura Team Chair, Randolph Public Schools

Wendy Rosenblum Director, The Victor School

Mary Joann Reedy, Esq. Attorney, Randolph Public Schools1

Paige Tobin, Esq. Attorney, Randolph Public Schools

Anthony Gemma, Esq. Attorney for Parents and Student

The official record of the hearing consists of Parents’ Exhibits P-1 through P-38, School’s Exhibits S-1 through S-19; and approximately 3.5 hours of tape-recorded oral testimony and argument, as well as the written closing arguments referred to above.

ISSUE PRESENTED

The issue presented for hearing is whether the Winchendon School (a private placement) is Student’s “stay put” placement for the period from March 2006 until Student’s graduation in August 2007 such that Randolph is required to reimburse Parents for certain costs associated with that placement, where the parties previously had agreed to a successor private placement (the Victor School), Student had attended the second placement for one day, and then returned to the Winchendon School.

POSITION OF PARENT

Although the Parents and Randolph agreed, in March 2006, to change Student’s placement from the Winchendon School to the Victor School, the then-16-year-old Student attended the new placement for one day and refused to return there, despite Parents’ efforts. Although Randolph learned of this development very shortly after it arose, Randolph cancelled a previously-scheduled Team meeting and refused to take any other action to develop an alternative placement for Student in a timely manner, thereby thwarting its own opportunity to participate in the placement decision for Student. The combination of the effective unavailability of the Victor School and Randolph’s inaction left the Parents no choice but to return Student to her previously agreed placement at the Winchendon School. Moreover, since, in fact, Student’s attendance at Winchendon was never really interrupted, Winchendon should be considered the status quo for the period in question. Student’s de minimis contact with Victor established by attending for one day did not change that status quo within the meaning of the IDEA. In light of the circumstances, Randolph must reimburse Parents for all costs they incurred for the Winchendon placement for the periods from March 2, 2006 through the end of the 2005-2006 school year, together with reimbursement for certain transportation expenses and costs of an independent evaluation.

POSITION OF RANDOLPH PUBLIC SCHOOLS

At all relevant times, by operation of law, the Victor School was Student’s “stay put” placement, by virtue of a binding settlement agreement between the parties coupled with the Parents’ acceptance of the Victor School as Student’s placement. Victor’s status as the last agreed-upon placement took effect upon the execution of these documents. Randolph is not obligated to fund the Winchendon School under “stay put” principles because it was not Student’s last agreed placement as of March 2006.

FINDINGS OF FACT

1. Student is an 18-year-old young woman (she was 17 when the hearing request was filed) who graduated from the Winchendon School in August 2007 and now attends college. She has authorized her Parents to pursue this appeal on her behalf. (P-14, Father)

2. There is no dispute that at all relevant times, Student was a child with disabilities who was entitled to special education and related services from the Randolph Public Schools. The parties agree, and the documents and testimony at hearing corroborate, that Student is an intelligent, capable, athletic and personable young woman. They further agree that Student has language-based learning disabilities and, as a result, needs various services and accommodations so that she can make effective educational progress in light of her potential. Finally, the parties agree that Student was diagnosed with depression in late 2004 or early 2005, which caused her to need medical leaves from school as well as medication and counseling. Parents have provided Student with appropriate professional care for her mental health issues, which Student has worked very hard to address. Student’s emotional status has improved significantly as a result. (S-14)

3. In March 2004, when Student was a ninth grader, she began attending the Winchendon School in Winchendon, MA as a residential student. Under the applicable IEP, Randolph funded the day portion of the placement. Parents funded the residential component.2 (P-1—P-3).

4. The Winchendon School is a private regular education school with day and residential options. It is not a special education school, and has not received approval from the Massachusetts Department of Elementary and Secondary Education (ESE) to receive public funds for that purpose. Winchendon does, however, serve some students with learning disabilities similar to Student’s. Believing that Winchendon’s small classes and individual attention could meet Student’s special educational needs, Randolph sought and received sole-source approval of Winchendon from the DESE (at that time, DOE). (P-2—P-4, Ventura)

5. In February and March 2005, Student took medical leaves from Winchendon as a result of the emerging depression and emotional issues referred to above. (S-2)

6. In or about April 2005, Mother informed Randolph that Student would need a different, therapeutic placement with in-school counseling services that Winchendon did not provide. (P-2)

7. In June 2005, based on this report by Parents, Randolph re-evaluated Student. On June 29, 2008, Randolph issued an IEP calling for continued services for Student’s language-based learning disabilities, as well as new, additional counseling services to address her emotional needs. This IEP did not designate a placement, but the TEAM agreed that Student needed a therapeutic out-of-district placement other than Winchendon. (P-2)

8. Randolph sent referral packets to day programs including two different collaborative placements. Parents did not accept any of Randolph’s proposed placements, and did not sign the IEP proposed in June 2005. Instead, in September 2005, Parents signed the previously-issued IEP for Winchendon School, which ran from February 2005 to February 14, 2006. The Parents’ reasoning for doing so was to continue Student’s attendance at Winchendon under “stay put” principles until a mutually-agreeable new placement had been located. (Father, Ventura, P-2, P-3)

9. On November 17, 2005, Randolph requested a hearing at the BSEA, which was docketed as BSEA No. 06-2427. In this request Randolph alleged, among other things, that the Winchendon School was inappropriate, and asked the BSEA to find that either of the collaborative programs Randolph had proposed would provide Student with FAPE. (P-2). Randolph’s motivation for the hearing request was concern that issues concerning Student’s placement needed to be resolved, that she was not doing well at Winchendon, and that Winchendon lacked the therapeutic and speech/language services that Student needed. (Ventura)

10. At some time before Randolph filed its hearing request, Parents retained their former counsel, a highly-experienced special education attorney, who filed a timely response to Randolph’s request. Additionally, on December 12, 2005, Parents’ then-counsel filed a hearing request on Parents’ behalf, which was docketed as BSEA No. 06-2813 (P-4). The Parents’ hearing request sought a determination that a day placement at Winchendon was Student’s stay-put placement pending appeal, as well as reimbursement for tuition, transportation, residential costs,3 and a speech/language evaluation, and identification of an appropriate sucessor placement for the remainder of the 2005-06 school year. (P-5)

11. The parties began negotiations, and in late February 2006, they reached an agreement that would settle both pending BSEA matters. (Reedy, Father, P-7) In pertinent part, the parties agreed to have Student placed at the Victor School, a private, Chapter 766-approved day school in Acton, MA. (Father, Reedy, Ventura, LeTourneau)

12. A letter dated March 2, 2006, from Randolph’s counsel to Parents’ then-counsel, memorialized the parties agreement as follows:

Re: Randolph Public Schools and [Student], BSEA No. 06-2427 and No. 06-2813

Dear Attorney [ ]:

This letter confirms the terms of settlement of the educational placement issue asserted by the Randolph Public Schools and [Parents], the parents of [Student], in the above-referenced appeals.

1. [Parents] as parents, irrevocably accept a day school placement for [Student] at the Victor School, Acton Massachusetts for the remaining term of the currently offered IEP, which ends in June 2006. Randolph will provide transportation for [Student] to attend the Victor School.

2. [Student’s] educational Team including parents, Randolph representatives, and representatives of the Victor School, will convene by March 8, 2006 to amend [Student’s] IEP as necessary for placement at the Victor school and to consider supports for [Student’s] transition into the Victor School.

3. [Student’s] Team will convene by May 1, 2006 to develop an IEP for the 2006-2007 school year. At that meeting, the Team will consider whether [Student] requires extended year services.

4. Randolph agrees to process reimbursement of parents for [an independent speech/language assessment].

5. The undersigned, as counsel for the parties, warrant that they have full authority to execute this agreement on behalf of their clients, the Randolph Public Schools and [Parents]

6. The parties agree to request a continuance of the hearing date scheduled for March 3, 2006.

[Signed], Mary Joann Reedy, on behalf of the Randolph Public Schools

[ Prior Attorney] on behalf of Parents

13. In a letter to Attorney Reedy dated March 6, 2006, and copied to the Parents, Parents’ former attorney stated,

I am writing to reiterate that [Parents] agree to the terms as stated in your emails to me of March 3, 2006 regarding [transportation to Student’s therapist, reimbursement for transportation to the Winchendon School and execution of mutual releases.] As agreed, you will…request a postponement of the hearing…and you will write the first draft of the settlement agreement… /s/ [Parents’ former attorney] (P-10)

14. At some point thereafter, Attorney Reedy wrote a draft settlement document that was designed to incorporate and put into formal language all of the items previously agreed to by the parties, including the items mentioned in the letter of March 2, 2006 and March 6, 2006, referred to in Paragraphs 11 and 12, above. In pertinent part, this document stated the following:

The Parents, irrevocably accept a day school placement…at the Victor School, Acton, Massachusetts for the remaining term of the currently offered IEP, which ends in June 2006…In the event that [Student] does not attend the Victor School for any reason, Randolph is not obligated to offer any alternative placement or educational services to Student through the end of June 2006….(3) [Student’s] Team will convene by May 1, 2006 to develop an IEP for the 2006-2007 school year….The Parents acknowledge that in the event of a dispute…regarding the educational program or placement proposed by Randolph for the 2006-2007 [sic], [Student’s] educational placement pending appeal will be the Victor School. (P-15)

15. The parties never executed the document referred to above, although counsel for both parties reviewed it. According to the School’s attorney, the agreement simply incorporated and restated what already had been agreed to by the parties, namely, that Student’s placement would be changed from Winchendon to Victor. (Reedy)

16. On March 7, 2008, Randolph conducted a TEAM meeting at the Victor School in Acton. Parents and Student attended the meeting along with representatives of the Randolph Public Schools. The TEAM meeting lasted over three hours, and both Student and Parents participated actively. (P-13, Ventura, LeTourneau, Rosenblum, Father).

17. On March 8, 2007, Randolph generated an IEP covering the period from March 7, 2006 to June 27, 2006. In pertinent part, the IEP called for placement at the Victor School in Acton, and for the TEAM to reconvene before May 1, 2006, “per BSEA settlement agreement.” Along with multiple references to the Victor School in the body of the IEP, the page of the IEP entitled “Team Determination of Educational Placement (PL-1)” stated the following: “Specific Program Location and Dates: Victor School, IEP Period 3/7/06—6/27/06.” (S-3, S-4) On March 17, 2006, Father indicated the Parents’ acceptance of the Victor School placement by checking the appropriate box and signing the placement page. There are no other marks or writings on the printed PL-1 form other than the check mark, Father’s signature, and the date of signature. (Father, S-4)4

18. The Victor School serves bright students who need therapeutic supports and services for such conditions as depression and anxiety in order to make educational progress. The long-term goal for most students there is to return to their home schools after they have learned to manage their emotional needs. (Rosenblum)

19. Between December 2005, when Student was first referred to Victor, and the time of the TEAM meeting in March 2006, Parents, Student and Randolph staff had multiple conversations with Victor staff to discuss the program’s appropriateness for Student as well as Student’s transition into the program. (Rosenblum) While they had some concerns, Parents hoped and believed that the Victor School would be an appropriate placement for Student, and would meet her academic, social and emotional needs. Parents and Randolph staff hoped and expected that Student would remain at Victor until graduation. (Father, LeTourneau, Reedy, Ventura) According to Randolph, the purpose of the IEP’s expiration in June 2006 was to enable the TEAM to revise goals and objectives and make summer plans. (Reedy, LeTourneau, Ventura) Neither party viewed Victor as a site for an extended evaluation, IAES, or other type of temporary placement, and none of the documents on the record describe Victor as a temporary placement. (Reedy, LeTourneau, Ventura, Father)5

20. Student, on the other hand, did not want to leave Winchendon or transfer to Victor, and made her objections known from the beginning of the transition process. For example, Student made very clear at the March 2006 TEAM meeting that she wanted to return to Winchendon and did not want to attend Victor. (Father, Ventura, Rosenblum) Additionally, Student stated in two letters to Assistant Superintendent LeTourneau that she (Student) had negotiated a return to Winchendon, and requested an opportunity to stay there for the rest of the 2005-06 school year. (P-17, 18; LeTourneau). Student’s unwillingness to go to Victor led to escalating conflict between Student and Parents. Parents began to fear Student would drop out of school, leave home or harm herself if she was made to change schools. (Father)

21. Randolph knew Student was reluctant to change placements, and offered Student a transition plan consisting of funding for extra counseling with her private therapist and transportation to the extra appointments. Randolph and Victor staff believed that Victor School’s own therapeutic component was equipped to support Student’s entry, especially since many new Victor School students are reluctant at the beginning of their placements. (S-3, Ventura, LeTourneau, Rosenblum). Parents did not share with Randolph, Victor, or their own attorney the extent of Student’s distress and unwillingness to change schools, and the conflict and turmoil this was causing in the home. (Reedy, Father)

22. On Friday, March 24, 2006, despite her desire not to change schools, Student attended a full day at the Victor School. According to Victor School staff, Student seemed to adjust well and seemed happy and engaged throughout the school day. (Rosenblum) On the other hand, Parents’ experience was that Student was distraught, crying and upset both before the start of the school day and after she came home, to the extent that the ensuing weekend (March 26 and 27, 2006) was a “nightmare.” (Father) Student never returned to Victor. Parents informed Victor that Student would not be returning, and would make another attempt to attend Winchendon. Victor informed Randolph of this turn of events on or about March 27 and 28, 2006.

23. On or about March 27, 2006, Parents’ then-attorney withdrew her appearance at the BSEA. (P-26)

24. In a letter dated March 29, 2006, Randolph informed Parents that it was canceling the previously-planned team meeting of April 3, 2006 because “[t]he purpose of the meeting would have been to review our concerns with [Student’s] IEP relative to her placement at the Victor School. Given that you have unilaterally terminated that placement, we will not be able to resolve your concerns about the IEP written for the Victor School.” (P-29, Father)

25. On April 10, 2006, pursuant to a 30-day Show Cause Order issued on March 8, 2006, the BSEA dismissed both pending appeals, Nos. 06-2427 and 2813. (P-32)

26. Meanwhile, on or about March 27, 2006, Student returned to Winchendon, at parental expense. (S-15)

27. On or about May 19, 2006, Parents wrote a letter to Randolph indicating that they were now rejecting the IEP for the Victor School, developed in March 2006, and asking Randolph to fund Student’s renewed placement at Winchendon, beginning with summer services for summer 2006. The letter also requested a meeting. (P-34)

28. Randolph initially scheduled a TEAM meeting for June 7, 2006, and then rescheduled the meeting for June 21, 2006, at parental request. Both Parents attended the meeting, and requested funding for Student’s placement at Winchendon. Parents stated that Student’s performance and behavior at Winchendon were improving and that she was happy at the school. No personnel from Winchendon attended the meeting. (P-38)

29. On June 23, 2006, Randolph issued an IEP covering the period from June 2006 through June 2007, calling for comprehensive services to address Student’s academic and emotional needs, and proposing a placement at the South Shore Educational Collaborative program located at Braintree High School. (Randolph previously had offered this placement, in addition to Victor, during the settlement discussions of February and March 2006.) The TEAM also developed a Chapter 688 Transition Plan recommending a referral to the Massachusetts Rehabilitation Commission to support Student’s post-graduate plans to attend college. (S-11, P-38) Parents did not sign this IEP.

30. Meanwhile, Student continued to attend Winchendon as a residential student, funded by her Parents. She struggled academically and emotionally, had some disciplinary encounters, and ultimately withdrew in April 2007.

31. Upon learning of Student’s withdrawal from Winchendon, Randolph once again convened a TEAM meeting in June 2007, which Parents attended, and developed an IEP covering June 2007 through June 2008. Once again, the proposed placement was at the South Shore Collaborative. Parents did not sign this IEP. (S-14)

32. Student did not attend South Shore Collaborative. Rather, after negotiating with Winchendon, Student was allowed to return to attend summer school and graduate in the summer of 2007. (S-15) Parents have borne all costs of the Winchendon placement since Student’s return there in March 2006. (Father,)

33. Randolph staff felt that both Parents were active, knowledgeable participants in Student’s educational planning and made many insightful and helpful contributions at TEAM meetings and in conversations with staff. By and large, the relationships between Parents and Randolph were open, professional, and cordial. (Ventura, Reedy, LeTourneau, Father)

FINDINGS AND CONCLUSIONS

After reviewing the testimony and documents on the record, I conclude that as a matter of law, Student’s “stay put” placement was the Victor School, from March 17, 2006, when Parents indicated acceptance of that placement via Father’s signature on the PL-1 placement page accompanying the IEP, through the date of Student’s receipt of a high school diploma in August 2007. In sum, acceptance of the IEP designating the Victor School effected the change in placement from Victor to Winchendon by operation of law, particularly given the surrounding circumstances.

Parents’ subsequent placement of Student back at the Winchendon School in late March 2006 constituted a new unilateral private school placement. Parents asked Winchendon to fund that placement in the spring of 2006, but did not pursue retroactive reimbursement under a “self-help” theory in the instant appeal. Even if they had done so, however, they would not prevailed because they did not prove that the programs offered by Randolph were inappropriate.6 Moreover, the preponderance of the evidence on Winchendon supported a conclusion that it was inappropriate for Student, and, for most of the time in question, Parents agreed with this conclusion. More detailed reasoning follows.

As both parties have amply discussed, a fundamental principle of federal and state special education law is that a child’s placement pending resolution of any dispute over his or her identification, evaluation, or placement is that child’s then current, i.e ., last agreed-upon placement, unless the parties agree otherwise, or unless a hearing officer or court orders otherwise for reasons not applicable here. 20 USC §1415(e)(3); 34 CFR §300.514; 603 CMR 28.08(7); Verhoven v. Brunswick School Committee , 207 F.3d 1, 10 (1 st Cir. 1999) As both parties also have pointed out, the purpose of this “stay put” rule is to ensure continuity and stability of the educational process for a child with a disability by maintaining the status quo until the dispute is resolved. Honig v. Doe , 484 U.S. 305 (1988); Verhoeven, supra , 203 F.3d at 1, 2. Courts have described the “stay put” provisions as an “automatic preliminary injunction,” designed to protect disabled students from a unilateral change in placement by a school district. Zvi d. by Shirley D. v. Ambach , 469 F. 2d 904, 906 (2d cir. 1982)

As a general rule, a placement becomes “current” when a parent accepts it, by signing an IEP and/or settlement agreement. Clyde K. and Sheila K. ex. Rel. Ryan K. v. Puyallup School Districts , 21 IDELR 664, 35 F.3d. 1396 (9 th Cir., 1994). See also Shawsheen Valley Regional Vocational Technical School District v. BSEA , 367 F. Supp. 411, 43 IDELR 109 (D. Mass. 2005). Of course, a parent has the right to change his or her mind about the appropriateness of the placement and may reject the IEP before it expires. Rejecting a previously-accepted placement before it expires does not generally confer “stay put” status to the predecessor placement, however. Id. Rather, parents who reject such a placement midstream, either because of a change in circumstances or simply because of “buyer’s remorse,” have the same recourse as they do when they reject an IEP when it is first presented to them. That is, such parents can attempt to negotiate a different placement and/or prove to a hearing officer that the newly-rejected program is inappropriate and some other program is appropriate. Until the parties resolve the dispute via a hearing, mediation, informal negotiation, or any other means, the child remains in his or her then-current placement (meaning the one that was just rejected) unless the parties agree otherwise. Id .7

In the instant case, the Parents contend that the mechanical application of “stay put” principles as outlined above would lead to a result that is contrary to what Congress intended, which was to prevent unnecessary disruption for disabled students. Parents argue, in effect, that to decide that Victor School has become Student’s “stay-put” placement when she attended for only one day exalts form over substance, and creates more disruption for Student rather than less. Parents correctly point out that while they and the School both hoped that Student would succeed at Victor, they had ample notice that Student—an intelligent, articulate 16-year-old with independent opinions regarding her own educational needs–adamantly opposed the transfer.

While Parents’ argument is thoughtful and creative, it does not reflect the state of the law. Parents have presented no statute, regulation or case law suggesting that a child needs to be in a placement for a particular period of time before stay put “attaches” or that the hearing officer can or should use equitable principles to analyze when that attachment occurs, especially where, as here, none of the parties considered Victor to be a temporary setting.

Parents further argue that when Student left Victor, the IDEA required Randolph to immediately come up with another, comparable program. Since Randolph cancelled the TEAM meeting scheduled for early April 2006, rather than meeting and developing an alternative proposal, Parents argue, it left Parents with no choice but to place Student back at Winchendon.

If Randolph had failed to offer alternatives within a reasonable time from Student’s leaving Victor, Parents could attempt to secure reimbursement for Winchendon not as a stay put placement, but as a unilateral parental private school placement.8 Of course, unless Randolph agreed to fund the placement, the Parents would have to prove to the hearing officer that (a) Randolph had failed to offer Student an appropriate successor placement after Student left Victor, and that (b) Winchendon was appropriate as a placement obtained via self-help.

Even if Parents sought reimbursement under this theory, however, and they did not, they probably would not prevail. First, while it is true that Randolph cancelled the IEP meeting scheduled for April 3, 2006, it did schedule a meeting for June 9, 2006, three weeks after the Parents’ May 19, 2006 rejection of the Victor School IEP. Randolph postponed this meeting to June 21, 2008, but at the Parents’ request. By June 23, 2006, about one month after Parents rejected the IEP, Randolph had issued a new IEP calling for a therapeutic day placement operated by the South Shore Collaborative.

By this time, Parents had requested Randolph to continue funding Winchendon. Parents did not pursue this reimbursement claim at hearing, however. Moreover, the limited amount of pertinent evidence in the record suggests that the South Shore Collaborative program might well have met Student’s needs at the relevant time. (See Finding of Fact No. 28, above).

Additionally, the evidence presented by both parties at hearing suggests that Winchendon was inappropriate for Student from at least April 2005 forward. Indeed, Mother approached Randolph at that time because she believed, with ample factual support, that Winchendon could not meet Student’s educational and emotional needs. Randolph agreed, and together the parties began the process of locating an appropriate alternative to Winchendon.

Student continued to struggle at Winchendon during the period for which Parents seek a “stay put” reimbursement, i.e ., from late March 2006 forward. Ultimately, in April 2007, Student had to withdraw. Student did receive a diploma from Winchendon, only because she made special arrangements with Winchendon and attended summer school there. (See Findings of Fact #29, 30)

As stated in Note 7, above, had the Parents pursued the self-help reimbursement theory at hearing, they would have found it difficult or perhaps impossible to prove the second prong of the test (appropriateness of the Winchendon placement) unless they presented significant additional evidence, which is not in the record in this case, tending to show Winchendon’s appropriateness. Parents also would also have found it difficult to show that the South Shore Collaborative program was inappropriate unless they presented credible evidence (also not on the record at this time) to this effect.

Finally, the Parents asserted before and during the hearing that the relevant settlement agreement and IEP were ambiguous, such that the Hearing Officer was required to consider extrinsic evidence of the parties’ intentions regarding “stay put” at Victor. I find, however, that the documents at issue, including the IEP for March through June 2006 as accepted by Father, the memorandum of agreement signed on March 2, 2006, and all related documents were not ambiguous on the issue of “stay put.” That the comprehensive settlement agreement referred to by the parties in their letter of March 2, 2006 never was executed is irrelevant, as is the content of the draft of that agreement, because the documents that were signed are clear. Moreover, the only evidence presented regarding the unsigned, undated draft settlement agreement was the unrebutted testimony of the attorney who drafted it to the effect that the agreement was designed to incorporate the parties’ pre-existing agreements into one document. (Reedy)

Also largely irrelevant is testimony as to what the parties thought or intended when they signed off on the letter of March 2, 2006 and when Father signed the IEP. The documents speak for themselves without ambiguity. Even if that evidence were relevant, however, it tends to show that the parties intended, without reservation, to change Student’s placement to the Victor School, at least for the period from March to June 2006, as set forth in the pertinent IEP.9 (See testimony of Father, Reedy, LeTourneau, Ventura)

Finally, Parents have requested reimbursement for certain transportation costs and the cost of an independent speech/language evaluation, but have not developed this claim. To the extent any of the transportation costs are included in the costs of the Winchendon School for the period at issue, Randolph is not responsible for paying them. Likewise, I decline to order payments for any other costs; the parties may have negotiated agreements regarding such payments, but these are outside the scope of this appeal.

CONCLUSION AND ORDER

For the reasons stated above, Randolph is not responsible for reimbursing Parents for the costs of Student’s attendance at the Winchendon School from March 2006 until Student’s graduation from Winchendon in August 2007.

By the Hearing Officer:

____________________ _____________________________

Sara Berman

Dated: June 12, 2008


1

Attorney Reedy testified as a witness for Randolph, having represented Randolph during the periods at issue in this Appeal. Attorney Paige Tobin, from the same firm as Attorney Reedy, represented Randolph at the hearing and authored Randolph’s written closing argument. Both attorneys provided Randolph’s pre-hearing representation.


2

Student lived at Winchendon because it is approximately 75 miles from her home and the parties had ongoing disputes over responsibility for daily transportation. (S-3).


3

It is unclear why Parents sought determination that “stay put” was a day placement and also sought the costs of residential placement; this apparent contradiction may be related to the Parents’ position that they needed to place Student residentially because of unresolved issues as Randolph’s responsibility for daily transportation between Randolph and Winchendon, as referred to above.


4

Also on March 17, Parents rejected portions of the remainder of the IEP. Father gave Randolph a memo with a list of the rejected portions. In general, the rejected items related to typographical and clerical errors, confusion regarding grade placement, need for clarification of certain goals, services, and accommodations, and the like. As with the PL-1 form, nothing in the Parents’ explanatory memorandum objected to or purported to limit consent to the Victor School placement.


5

At hearing Father testified that he understood the parties’ agreement to be that Student would “try out” Victor until the end of the school year. I do not find this portion of Father’s testimony credible, as it is contradicted by events at the time of the Victor School placement. These include Father’s unequivocal written acceptance of the Victor School placement despite his partial rejection of other portions of the March 2006 IEP, the absence of any contemporaneous oral or written discussion of Victor as a temporary placement, and Parents’ withdrawal of Student from Winchendon in mid-March 2006. All of these facts and circumstances support an inference that at the time Parents accepted the Victor School placement, they did not intend that placement to be temporary. Whether the Parents intended Student to remain at Victor until graduation, or some shorter period, I find that they expected she would stay there longer than three months, and that they certainly did not believe or expect that she was entitled to return to Winchendon at Randolph’s expenses if she did not like Victor. (Father, Reedy, LeTourneau, Ventura)


6

Additionally, since Parents did not request funding for Winchendon until May 19, 2006, after Student returned there, they could be denied reimbursement for expenses prior to that date, even if they had met the other criteria for reimbursement.


7

This discussion applies only to situations, as in the instant case, where both parties agree that a student needs special education, but disagree on the specific placement. The legal effect of a parent’s decision to withdraw consent to any special education services, over the objection of a school district, and to return that child to regular education without an IEP, is not the issue here. Contrast In Re Cohasset Public Schools, v. Ethan , BSEA No. 07-5436 (Beron, August 23, 2007)


8

Parents neither advanced nor developed this theory of recovery. In analyzing the pertinent facts in this case, it becomes clear that Parents’ only hope of recovery was under the “stay put” theory discussed above, because, based on the evidence now on the record, they probably would not prevail in a standard tuition reimbursement case.


9

Further, both parties were represented by counsel, and had had many discussions over the previous months about Student’s placement issues. Moreover, as noted above, both Parents are knowledgeable and sophisticated regarding special education. I conclude that if the Parents either had not understood Randolph’s intentions regarding “stay put,” or disagreed that Student’s placement was being changed, they would have asked questions or voiced their disagreement at the time.

 

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