Raoul and The Agawam Public Schools – BSEA #04-1916



<br /> Raoul and The Agawam Public Schools – BSEA #04-1916<br />

COMMONWEALTH OF MASSACHUSETTS

Bureau of Special Education Appeals

In Re: Raoul1 and The Agawam Public Schools BSEA# 04-1916

DECISION

This decision is issued pursuant to M.G.L. c. 71B and 30A, 20 U.S.C. § 1401 et seq ., 29 U.S.C. 794, and the regulations promulgated under these statutes. At the Student’s request a prehearing conference was held on November 19, 2003, at which the parties agreed to submit the matter on documents pursuant to 801 CMR 1.01 (10)(b) and BSEA Rule 11. Both parties submitted arguments and documents as directed by the Hearing Officer. The record closed on April 6, 2004.

Issue

Does the provision of a free, appropriate public education to a student placed in a residential special education program include associated non-tuition expenses incurred by the Parent for clothing, laundry, phone calls and parental transportation?

Background

The factual and procedural background to the issue presented for resolution may be briefly summarized:

1. Raoul is a sixteen year old special education student. He recently completed the 10 th grade at the Forman School, a private, unapproved residential special education facility in Connecticut. Raoul has been diagnosed with a non-verbal learning disability which affects his ability to produce written language and to engage in social communication at the expected age and grade level. He has also been diagnosed with a mood disorder and can become anxious and depressed which, at times, interferes with his academic performance. Cognitively he functions in the above-average range. His academic skills, as measured by standardized testing, generally fall within the average range. The parties agree that Raoul needs a small, structured interactive educational setting with the availability of individual counseling. During multiple meetings over the course of the spring and summer, 2003, the parties developed an IEP and agreed to its implementation at the Forman School. That IEP is not in dispute. (P-7, P-8, P-11)

2. The 2003-2004 IEP provides for regular transportation for the Student. It does not contain any activity of daily living skill goals or objectives. It does not contain any goals or objectives addressing parent-student communication. It does not provide for any adaptive or specialized clothing or communication devices. (P-7, P-8, P-11)

3. The Forman School has a dress code. The Forman School Parent Student Handbook for 2003-2004 states:

The Forman School Dress code requires:

Boys : dress shirt and tie; dress slacks or dress corduroys with belt; shoes or leather sandals and socks; all worn with a sport coat or blazer.

Winter Term Modifications

Boys : turtlenecks may be worn in lieu of a shirt and tie; a dress sweater may be worn in lieu of a sport coat/blazer.

(P-5, S-B)

The Parent asserts that she purchased clothing specifically to conform to this dress code: dockers slacks, long sleeved shirts, short sleeved shirts, ties, socks, sweaters, shoes, corduroy jacket, and turtlenecks. The clothing was purchased “off the rack” at: Levi Outlet, Nautica, TJ Maxx, Marshall’s, Filene’s Basement, Bob’s, Polo Factory Outlet and Kohl’s. The Parent seeks reimbursement for these purchases in the amount of $1,286.61 (P-3)

4. The Forman School requires students to wear “neat and clean” clothing.

The Parent Student Handbook states:

The school recommends E & R Laundry for consistent and convenient laundry needs. E & R provides laundry and dry cleaning services on a weekly basis. Arrangements for the use of E & R Laundry Service, Inc. are between the parent and the laundry service offered through the School…

For Students not opting for the laundry service, the School provides washers and dryers on campus at no cost, except for detergent. Machines are located in the basements of most dormitories.

(P-5, S-B)

The Parent requests reimbursement of the $690 annual laundry service fee stating that the Student has “no time” to do his own laundry at school or while he is at home on weekends. (PS-1, P-S-4)

5. On October 27, 2003, the Parent requested a hearing on the issue of

Agawam’s decision to refuse funding of the laundry service. At the parties’ request this appeal was consolidated with BSEA #04-0557 which has similar participants and issues. A prehearing conference was held on November 19, 2003, at which the Parent identified the following issues for resolution:

A. reimbursement of parental expenses for student clothing that conforms to the Forman School dress code;

B. reimbursement for laundry service;

C. reimbursement of up to $25.00 per month in long distance telephone calls to ensure appropriate home-school communication;

D. reimbursement of parental transportation expenses, including overnight lodging when necessary, incurred to attend parent-teacher conferences, student activities, and for student illnesses.

The parties agreed to submit the questions to the Bureau on documents.

Legal Framework

Personal and socio-economic issues aside, this matter presents a reasonable, and not necessarily simple, question: what is meant by “free” in the free, appropriate public education standard? The IDEA defines “free” as “at no cost to the parent” or “ provided at public expense, under public supervision and direction and without charge”, a definition which is not particularly helpful here. 20 U.S.C. 1401(8); 34 CFR 300.13. Thus the question is while he is a publicly funded student in a residential special education facility, are Raoul’s clothing and laundry, telephone calls to his mother, and his mother’s visits to him, to be provided at public expense? After careful consideration of the facts in this matter, the arguments of the parties, and the limited administrative and judicial precedent addressing this issue, it is my determination that personal clothing, laundry, family telephone calls and parental transportation are not, without an explicit link to an identified learning need of the Student, expenses for which public funds are available under the state or federal special education laws. My reasoning follows:

A public school district is “responsible for provision of specific service(s) to students with disabilities, at no cost to parents, if such service(s) falls within the parameters of ‘special education’ and/or related services.” 20 U.S.C. § 1401 (18).” In re: Frank A. and the Somerville Public Schools, 2 MSER 10 (1996). Therefore the Bureau must determine whether clothing, laundry, telephone calls, and parent transportation are “special education” or “related services.” An inquiry as to whether a particular item or service falls within these parameters depends on the facts of a given case, as well as a “careful review of relevant state and federal statutes and corresponding regulations.” In re: Frank A., at 11. As Reece Erlichman, the Hearing Officer in that case, noted parenthetically. “[I]n the absence of specific judicial guidance on point, the starting point for interpretation/analysis must be the plain meaning of the statute and related regulations” (citing U.S. v. Weber Aircraft Corp., 465 U.S. 792 (1984)).

A. Special Education

The operational definition of special education in the IDEA is set out in its implementing regulations:

The term special education means specially designed instruction, at no cost to the parents, to meet the unique needs of a child with a disability.

1. At no cost means that all specially-designed instruction is provided without charge, but does not preclude incidental fees that are normally charged to nondisabled students or their parents as a part of the regular education program.

2. Specially-designed instruction means adapting, as appropriate to the needs of an eligible child under this part, the content, methodology, or delivery of instruction-

(i) To address the unique needs of the child that result from the child’s disability; and

(ii) To ensure access of the child to the general curriculum, so that he or she can meet the educational standards within the jurisdiction of the public agency that apply to all children.

34 CFR 300.26 (20 U.S.C. 1401 (25).)

Massachusetts regulations, interpreting M.G.L. c. 71B in conformity with the IDEA, provide this definition of special education:
special education shall mean “specially designed instruction to meet the unique needs of eligible students or related services necessary to access the general curriculum, and shall include the programs and services set forth in state and federal law.”

603 CMR § 28.02. (Emphasis added).

Massachusetts regulations provide further guidance on the scope of “special education” in other sections. For example, an eligible student’s IEP “shall include specially designed instruction to meet the needs of the individual student and related services that are necessary to allow the student to benefit from the specially designed instruction, or may consist solely of related services that are necessary to allow the student to access the general curriculum, consistent with federal and state law.” 603 CMR § 28.05(4). (Emphasis added) Further, the IEP “shall include specially designed instruction or related services…designed to enable the student to progress effectively in the content areas of the general curriculum.” 603 CMR § 28.05(4)(b).

Taken together, the plain meaning of “special education” as the term is used in both the federal and state regulations is some type of “instruction” that is crafted especially for one student. It is the individually designed and delivered “instruction” that must be provided at “no cost” to the parent of an eligible student. Turning to the dispute here it is clear that the items for which the Parent seeks public funding: clothing, laundry, telephone service, and parent transportation, cannot be characterized as “instruction” and therefore are not subsumed in the regulatory definitions of “special education” that must be provided to a student with a disability at “no cost” to the parent.

B. Related Services

The definition of “related services” set out in the federal regulations mirrors the statutory definition set out in the IDEA.

§300.24 Related services.

1. (a) General . As used in this part, the term related services means transportation and such developmental, corrective, and other supportive services as are required to assist a child with a disability to benefit from special education, and includes speech-language pathology and audiology services, psychological services, physical and occupational therapy, recreation, including therapeutic recreation, early identification and assessment of disabilities in children, counseling services, including rehabilitation counseling, orientation and mobility services, and medical services for diagnostic or evaluation purposes. The term also includes school health services, social work services in schools, and parent counseling and training.

34 CFR 300.24; 20 U.S.C. § 1401 (22).

Massachusetts regulations provide that the term “related services” is to have the same meaning as that set forth in 34 CFR § 300.24. 603 CMR 28.02 (19). Therefore the same analysis is used under both the federal and state statutory schemes.2 Some “developmental,” “corrective” and “supportive” services meant to be included in the “related services” umbrella are set out specifically in the regulation e.g. audiology, occupational therapy, orientation and mobility services, recreation and parent counseling and training. The full scope of equipment and services covered by the term “related services” is evolving through judicial evaluation of statutory intent, technological advances in care of individuals with disabilities, and common sense planning by school districts and parents.

The leading case addressing the issue of public school school responsibility for the provision of “supportive services” under the federal special education statute remains Irving Independent School District v. Tatro, 468 U.S. 891, 104 S. Ct. 3371 (1984)3 There, in deciding that the public school was responsible for providing school nursing services including clean, intermittent catheterization to a student with spina bifida, the Court noted that services qualify as “supportive services” if without them the student cannot attend school and thereby benefit from special education. See also : Cedar Rapids Community School District v. Garret F. , 526 U.S. 66, 119 S. Ct. 992 (1999).

Each item requested by the Parent must be evaluated using the plain statutory and regulatory language concerning related services as augmented by the Supreme Court’s directive in Tatro to consider issues of actual access to the special education program. Any item for which reimbursement is requested by the Parent must be properly characterized as a “related service” before public funds may be authorized to pay for it.

1. Clothing

The Parent requests reimbursement of $1286.61 expended for student clothing that conforms to the dress code in effect at the Forman School. She argues that the type and amount of clothing needed to meet the Forman School dress code is not usual and customary for the Student and therefore is akin to a uniform requirement. Without proper clothing, she notes, the Student is not permitted to attend school. The public school points out that there is no uniform requirement at the Forman School, with the exception of some interscholastic sports uniforms which are provided by the School. The clothing the Forman School expects to be worn by its students is described generally in the Forman School handbook, can be purchased at nearly every store that sells clothing, and is not specialized to the School, or to this Student in any way. The public school notes that were the Student attending Agawam High School he would also need to purchase clothes, and that any of the items purchased for the Forman School would be equally appropriate for Agawam High School.
(PS-5, S-B) (See ¶ 3, supra .)

The question presented for decision here is whether the purchase of specific items of clothing as suggested by the Student’s publicly funded special education placement is necessary to ensure Raoul’s access to, or benefit from, that program. I think not. All students, whether or not they have disabilities, are enrolled in public or private schools, day or residential programs, must wear clothing to attend school. Until they are ready developmentally and financially to assume that responsibility for themselves, parents typically select and fund student clothing. The amount of clothing, the style of clothing, the condition of clothing, the origin of clothing, selected by the student and/or parent depends on a variety of socio-economic, cultural, political, religious, and personal factors. Adherence to a school sponsored dress code is just one factor influencing choice of clothing. A dress code is not equivalent to a uniform. There is no indication here that the Forman School requires students to purchase identical items from a single source at a standard price that would be unsuitable for use or wear outside of the Forman School environment. Nor is there any indication that as a result of a disability the Forman School requires this Student to wear specialized clothing. Indeed there is nothing extraordinary about the clothing list in the Forman School handbook. It does not suggest any uniformity of color, fibre, or cut that would render student clothing inappropriate for general wear. It does not suggest that without a particular style or brand of clothing a student will be denied access to the Forman School programs. The fact that the Parent purchased Raoul’s clothing “off the rack” from such mainstream suppliers as TJ Maxx, Filene’s Basement, and Kohl’s indicates that the items are neither specialized nor uniform. (PS-3). To the contrary, the receipts provided by the Parent buttress the conclusion that the purchased clothing is intended for everyday wear by everyday people in a variety of everyday life situations not limited to attendance at the Forman School. The fact that the purchased items may not be to the Student’s taste does not render the clothing unsuitable for use outside the Forman School. There was no showing here that any particular item of clothing was necessary for Raoul to access the Forman School, or to benefit from the special education program there. There was no showing that any goal or objective in Raoul’s IEP could or would be addressed through the purchase of one or more of the clothing items for which receipts were presented. There was no showing that, by expending family funds for everyday clothing, Raoul was in any different position than his nondisabled peers.4 Raoul’s personal attire, even though purchased in order to conform to a “dress code”, does not qualify as a “related service” for which public funds must be expended. Therefore I find that absent a direct connection to implementation of an approved IEP a public school need not fund everyday clothing for a student placed at a residential special education school at public expense as a component of its obligation to provide a free, appropriate public education.

2. Laundry

The Forman School has laundry machines in the dormitories which are available without charge for student use. Alternatively students may contract with a laundry service for an annual fee of $690. Raoul returns home on weekends and presumably has access of some sort to laundry facilities while at home. The Parent argues that the public school should pay the $690 annual fee for laundry service because Raoul has “too little time” to launder his own clothing. (See ¶ 4)

There is no indication in the Student’s IEP that he has any cognitive, emotional, or physical disability which would prevent him from performing this developmental activity of daily living skill. Nor is there any goal in the IEP which use of a laundry service would address. (PS-7, 8, 11) There is no evidence in this record that a laundry service is required in order for Raoul to have access to the Forman School or to benefit from its special education program. As the Forman School provides self-service laundry facilities to its students, I find that Raoul’s use of those machines would not endanger his placement at the Forman School. He might even derive a significant, if ancillary, educational benefit from doing so. Therefore I find that the laundry service requested by the Parent is not a necessary “related service” for Raoul.

3. Telephone

The Parent requests an allowance of up to $25 per month from the public school to cover the cost of parent-student telephone calls. She argues that the long distance phone charges are incurred solely because the public school has determined that the Student cannot receive a free, appropriate public education locally. She maintains any expenses the Parent bears as a result of this determination should be borne by the public school in order to ensure that the student actually receives a free appropriate public education. The public school contends that the telephone charges are personal in nature and not necessary for the Student to access or benefit from the special education program at the Forman School. I agree.

There is no indication in Raoul’s IEP that he has any emotional, behavioral, or communication needs which require a certain level of home-school communication. There are no goals or objectives in his IEP for which use of the telephone, or communication with the Parent, is necessary. (PS-7, 8, 11) Therefore I cannot find that the public school’s failure to provided long distance calling card service to the Student erects a barrier to his participation in the special education program at the Forman School, or denies him a benefit of participation in that program. 34 CFR 300.13.

4. Transportation

There is no dispute that the public school is responsible for, and does in fact provide, door to door transportation for the Student between his family home and his residential program for all authorized school holidays, as well as the beginning and end of each term. The Parent requests, in addition to that service, that she be reimbursed for her travel to the Forman School to attend parent-teacher conferences and other school activities to which parents are invited, as well for her travel to visit Raoul when he is ill, or has forgotten a necessary personal item, or to maintain good parent-child communication. She suggests that she be compensated for mileage, lodging when necessary, and food. The School contends that it is meeting its statutory and regulatory obligations by providing necessary transportation to the Student, and that it is not authorized under Massachusetts law to provide transportation to a Parent.

I note that student transportation is a “related service” defined in the IDEA regulations as:

I. Travel to and from school and between schools:

II. Travel in and around school buildings; and

III. Specialized equipment (such as special or adapted buses, lifts, and ramps), if required to provide special transportation for a child with a disability.

34 CFR 300.24(b)(15). See 20 U.S.C. § 1401(22).

Consistent with other “related services”, publicly provided transportation for the Student is required when necessary to access or to benefit from the agreed upon special education program. There is no provision in either federal or state law for parent transportation. All regulatory references to transportation cite the Student’s need for or right to transportation consistent with the IEP and appropriate safety standards. 603 CMR 28.05 (5); 603 CMR.06 (8). Indeed Massachusetts regulations governing a public school district’s fiscal responsibilities specifically limit reimbursement for mileage to that incurred by each eligible “student”. 603 CMR 10.00

Raoul’s IEP does not have any goal, objective or accommodation that would necessitate a parental presence at the Forman School. Nor are there any parental attendance requirements imposed by the Forman School as a condition of Raoul’s continued placement there. While the Parent’s desire for involvement in the Student’s educational program is admirable and understandable, there is no indication in this record that Raoul cannot participate fully in the special education program at the Forman School in the absence of the Parent.

As a related service, the transportation needs of the Student, other than those minimally required times when the residential program is closed, should be a part of a Team discussion of appropriate services that are demonstrably related to the achievement of objectives in the Student’s IEP. See: Letter to Dorman, 211 IDELR 70 (OSEP 1978); North Allegheny School District v. Gregory P., 25 IDELR 297; 687 A.2d 37 (PA. 1996). Neither the IDEA nor the Massachusetts special education law contemplates providing publicly funding transportation to a parent for visits to a student placed residentially in an out-of-district special education program. The Student’s Team would be the proper place to discuss such a request in the first instance.5 Having found no evidence in this record to indicate that the Parent’s presence at Forman School at any time is related to the achievement of any objective in Raoul’s IEP I find that parental transportation cannot fairly be characterized as a “related service” and that Agawam’s refusal to fund the Parent’s request is proper.

ORDER

Personal clothing, laundry service, phone calls and parent transportation are not components of a free, appropriate public education for Raoul. The Parent is not entitled to reimbursement of funds expended for these purposes during 2003-2004 school year. Agawam is responsible for reimbursing the Parent, upon presentation of appropriate documentation, for all authorized parentally provided student transportation to and from the Forman School at the state approved rate.

Lindsay Byrne, Hearing Officer


1

1 “Raoul” is a pseudonym chosen by the Hearing Officer to protect the privacy of the Student in publicly available documents.


2

Other Massachusetts regulations govern the public school district’s responsibility for costs associated with an out of district special education placement. See 603 CMR 10.00, 10.07. These regulations require that the district’s funds be used for “special education and related services specified in approved individual education [plan] and limit payment to those costs billed by the special education providers and approved in advance by the Massachusetts Department of Education. 603 CMR 10.07


3

Though Tatro was decided under the EAHCA, the predecessor statute to the currently named IDEA, the pertinent provisions of the law are identical.


4

My research did not turn up any recorded case in which a parent raised the issue of economic injury as part of challenge to a school dress code. Dress code challenges typically center on issues of free speech. See: P yle v. South Hadley , 861 F. Supp. 157 (D. Mass. 1994), 55F: 3d 20 (1 st Cir. 1995), 423 Mass 283,

667 N.E. 2d 869 (1996).


5

Aaron M. v. Yomtoob , CA 00-C7732, N.D. Ill. Nov. 25, 2003.


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