Re: Anne and Provincetown Public Schools and Massachusetts Department of Education – BSEA# 04-3100 and 05-0340



<br /> Re: Anne and Provincetown Public Schools and Massachusetts Department of Education – BSEA# 04-3100 and 05-0340<br />

COMMONWEALTH OF MASSACHUSETTS

BUREAU OF SPECIAL EDUCATION APPEALS

In re: Anne1 and Provincetown Public Schools and Massachusetts Department of Education BSEA #04-3100 & 05-0340

DECISION

This decision is rendered pursuant to the Individuals with Disabilities Education Act (20 USC 1400 et seq.), Section 504 of the Rehabilitation Act of 1973 (29 USC 794), the state special education law (MGL ch. 71B) the state Administrative Procedure Act (MGL ch. 30A) and the regulations promulgated under these statutes. Pursuant to the parties’ request, this decision is based on the written record with no oral testimony. Thus, the record consists of School Exhibits 1 – 4, DOE Exhibits 1 and 2, and Parents’/School’s Stipulation #5.2

STATEMENT OF THE FACTS

Anne is an eight-year old bright young girl with a severe to profound hearing loss following a complicated pregnancy and premature birth. She expresses herself primarily through intelligible spoken English and requires communication support of sign supported English to receptively understand. The method used is Signing Exact English with speech (SEE-II). Her reading skills were tested to be above-age level; her written expression skills at the average level. She is an outgoing, interactive child. (School Exhibit 2). Parents have resided in Provincetown, Massachusetts since 2002 when they moved from Plano, Texas. As acknowledged by both Parents and the Provincetown Public Schools (Provincetown), the appropriate communication method for Anne is the method she was taught while in Texas – SEE-II. Thus, Parents and Provincetown both agree that a free and appropriate education (FAPE) for Anne requires this method. The method of instruction and communication within the school environment should be the SEEII method. Her teachers should be teachers of the deaf fluent in SEEII with 85% or better sign to voice ratio. (School Exhibit 2) Provincetown attempted since June of 2003, to establish an appropriate program within its school system, seeking an instructor in SEE-II. Despite advertising in newspapers, contacting the Department of Education, conducting an internet search, and utilizing informal professional contacts, Provincetown was unable to locate an instructor with SEE-II training to work with Anne in Provincetown. (School Exhibit 3, Parent and School’s Stipulation #5). The Beverly School for the Deaf (BSD), a Chapter 766-approved day school in Beverly, Massachusetts, is the only school for the deaf in the area that uses this method.3 (School Exhibit 1) Accordingly, Anne’s agreed-upon January 2004 – January 2005 IEP identifies this method and this BSD placement as necessary for Anne to receive a FAPE. Because the drive between the town of Provincetown and BSD is over three hours each way4 , since January of 2004, Mother has rented a room at the Comfort Inn, and later, at the Residence Inn, near BSD in order for Anne to attend this day school. Provincetown offered transportation between the Comfort Inn / Residence Inn and BSD. Parents refused this transportation, and instead requested either daily transportation between the towns of Provincetown and Beverly via airfare with a monitor, or a monthly stipend in lieu of transportation.

PROCEDURAL HISTORY

This case has a rather lengthy procedural history, resulting from the parties’ attempts to reach an agreement as to Anne’s educational placement and services, as follows:

1. On January 31, 2004, Provincetown filed for a BSEA hearing, asserting a dispute over the transportation for Anne’s agreed-upon day school placement at BSD.

2. After several telephonic conference calls, rulings, and a prehearing, on June 16, 2004 the nature of this case changed. Provincetown’s TEAM decided that Anne required a residential placement as a related service to Anne’s educational placement at BSD, (School Exhibit 2) and together sought the Massachusetts Department of Education’s (DOE’s) sole source approval necessary for state funding. Provincetown filed a Motion to Join DOE as a necessary party. On July 26, 2004, after DOE denied sole source approval (DOE Exhibit 1), the BSEA joined DOE as a necessary party to BSEA #04-3100.

3. On July 7, 2004, Parents filed a cross-claim (BSEA #05-03405 ), asserting that because Provincetown was refusing to provide the transportation between the town of Provincetown and BSD or housing costs near BSD and a “housing mother” so that Anne could attend BSD as a day student, it was effectively failing to provide Anne with FAPE. As a result, Parents allege violations of the IDEA, Section 504 of the Rehabilitation Act of 1973, the Americans with Disabilities Act, and the RICO Statute. They sought the above-named related services as well as compensatory services and money damages.

4. On July 29, 2004, the parties jointly filed a Motion for Decision Without a Hearing, based on Provincetown’s Exhibits 1 – 3 as well as facts numbered 1 – 12 stipulated to by Provincetown and Parents. They sought a ruling that would enable the parties to recognize Mother’s residence near BSD established by Anne’s mother as a component of Anne’s educational placement at BSD. They sought an order “allowing Provincetown to treat this residential placement as a bona fide residential educational program, which would enable Provincetown to access all of the funding resources, provided by DOE, comparable to those which are provided to traditional residential educational programs.” Although DOE joined in this motion for a decision without a hearing, on August 4, 2004 it opposed the stipulation of facts, for it did not sign the stipulation and could not stipulate to facts numbered 9 – 12.

5. On August 30, 2004, the Hearing Officer granted the parties’ request for a decision without a hearing, contingent on, among other things, the parties’ submitting a) affidavits rather than stipulated facts, and b) memoranda supporting their legal positions on several questions as follows:

1. Is a residential setting a related service within the meaning of the Individuals with Disabilities Act (IDEA)6 , Massachusetts’ Special Education laws (Chapter 766)7 , and Section 504 of the Rehabilitation Act of 1973 (Section 504)8 , where such setting is needed not to address the IEP goals on a 24 hour basis, but rather is needed in order to access the private special education day school identified on the IEP? If such residence is a related service, are Provincetown and DOE also responsible for providing a “housing mother” as requested by Parents?

2. If BSD is the only school in Massachusetts offering the SEE-II communication method, is DOE responsible for ensuring that it is accessible to Anne as a Massachusetts student whose FAPE requires that communication method?9

3. Prospectively, is Provincetown responsible for taking any further measures to create or locate a program that provides Anne with a FAPE in a setting within driving distance to her home in Provincetown?

The submissions were due by September 14, 2004, and oral arguments were to occur before September 30, 2004. On September 14, 2004, the parties informed the Hearing Officer that they wished to settle the case, that they agreed in principle, but requested a settlement conference to finalize their agreement. The settlement conference with counsel for each party and the Hearing Officer convened on September 29, 2004. With the guidance of federal and state law, the parties potentially achieved a settlement agreement appropriate for this extremely unusual situation, however, requested that such agreement be ordered by the Bureau. By practice, the Bureau has declined to order settlement agreements absent a decision based on the record, for such practice opens up the possibility of the Bureau to ordering something that is not supported in fact or in law. Accordingly, the Hearing Officer declined to order the settlement agreement without a decision on the record. The parties therefore requested a decision.10 Although Parents filed briefs in this case, Provincetown and DOE did not, for they chose to attempt a settlement of the case.

DOE disagrees with Provincetown’s and Parents’ position that the requested residential services are part of a residential educational program subject to sole source approval. However, DOE does agree that the requested residential services are related services necessary for Anne to access BSD, and that such related services are subject to the Circuit Breaker regulations. (DOE Exhibit #2) Provincetown foregoes its request for sole source approval as long as DOE will allow Provincetown to claim circuit breaker funding for the residential portion of Anne’s placement. (School Exhibit #4)

FINDINGS AND CONCLUSIONS

The law is clear. The IDEA mandates that every special education student shall receive a free and appropriate public education. See 34 CFR §300.300(a)(1). Further, the IDEA mandates that a child’s education must include related services such as transportation and other supportive services as are required to assist a child with a disability to benefit from special education. See 34 CFR §300.24(a).

The facts are unusual but clear. Anne is a student with a disability residing in Provincetown. Provincetown had attempted unsuccessfully since June of 2003, to establish an appropriate program within its school system. (School Exhibit 3, Parent and School’s Stipulation #5) Finally, Provincetown’s TEAM determined that BSD, a private day school, was the only placement offering Anne an appropriate special education in the least restrictive setting (FAPE) and issued a January 2004 – January 2005 IEP calling for such placement. (School Exhibit 2, School Exhibit 1). BSD is a day school, yet the commute between Provincetown and BSD is significantly beyond what is reasonable for any student. Thus, since January of 2004, Mother has rented a motel room where she and Anne stay while school is in session, in order that Anne can attend BSD (and therefore benefit from it). Parents maintain their home in Provincetown.

Several circuit court cases shed light on this case. The Ninth Circuit U.S. Court of Appeals addressed a similar request for lodging in Union School District v. B. Smith and California Department of Education , 15 F.3d 1519 (9 th Cir. 1994). The court addressed the question as to whether lodging expenses were related services subject to reimbursement under the IDEA. The public school had failed to provide FAPE, and parents had unilaterally placed their child with autism in a private day facility deemed appropriate, that was not within daily commuting distance of their permanent residence. Parents had obtained lodging near to this facility in order that their child could access the program. The circuit court first rejected the school district’s argument that the school district where the student lived during the week was the district responsible for the student’s education.11 It then rejected the school district’s and the state department of education’s claim that it was without authority to award the parents reimbursement for lodging, finding that such was a related service under the IDEA that was required for the student to benefit from the program. Accordingly, the circuit court affirmed the judgment of the district court.

The First Circuit U.S. Court of Appeals addressed a similar request for reimbursement for a parent’s time – in that case time transporting his child, and in this case, time as a supervising evening/overnight staff-person. See George Hurry v. Dr. Jerome Jones , 734 F.2d 879 (1 st Cir. 1984). Here, the court addressed the question as to whether a parent should be reimbursed for his/her time (in addition to mileage) in providing a related service – transportation in that case. The Court ruled that the IDEA would entitle the parent to reimbursement for his contributed services in driving child to and from school, and that reimbursement is not limited to out-of-pocket expenses but may also include compensation for expenditure of time and effort as long as such estimate is reasonable. The court stated:

The award of $4,600 for [Parents’] contributed services in driving Student to school requires us to determine whether the reimbursement available under the EAHCA is limited to out-of-pocket expenses, or whether it may also include compensation for the expenditure of time and effort. We see no reason why the latter type of expense should not be reimbursed, except for the possibility that, when reimbursement is given for the monetary equivalent of time and effort, excessive payments might be made. To the extent that this could occur, the distinction between “reimbursement” and “damages” would be blurred. … [The district court’s award] is obviously a bare-bones figure, well within any reasonable estimate of fair reimbursement. Moreover, it cannot be argued that the service in question – transporting Student to and from school – called for any special skill or training that the parents lacked.”

Likewise, the Third Circuit U.S. Court of Appeals addressed reimbursement for a parent’s time – in that situation, time for providing her child ABA training. See Bucks County Department of Mental Health/Mental Retardation v. Commonwealth of Pennsylvania, Department of Public Welfare , 104 LRP 38808 (3 rd Cir. August 18, 2004, Docket #02-3919). Here, the court affirmed the district court’s decision to award reasonable reimbursement where a) the school district had failed to provide the ABA training deemed appropriate for this child, b) the amount of reimbursement was deemed reasonable, c) there were no trained staff available, d) parent was deemed sufficiently trained, and e) the reimbursement was deemed equitable.

The IDEA, as interpreted by these circuit courts, clearly supports Parents’ claim that in this extremely unusual situation, a residence, a supervising evening/overnight staff-person, and transportation, are necessary related services in order that Anne can attend BSD. Because Provincetown failed to provide Anne with a way of accessing BSD, Mother appropriately rented a room in the nearby area in order that Anne can reside there during the school week and attend BSD. Accordingly, Provincetown must provide reasonable reimbursement to Parents for lodging, Mother’s role as supervising evening/overnight staff person, and transportation, necessary for Anne to benefit from her schooling at BSD. Finally, Anne’s need for related services is no different from others – DOE is subject to its Circuit Breaker responsibilities for the related services necessary for Anne to receive FAPE.

Finding that Provincetown is responsible for lodging and overnight staffing is made only after significant struggle with what appears common sense – schools are not in the business of providing lodging, and schools are certainly not in the business of paying parents to do what they always do – parent their children. Yet equally predominant is the common sense understanding that each child has a right to an appropriate education, and school districts must provide that. As long as BSD is the only appropriate educational placement for Anne, Provincetown has no choice other than providing Anne with a residence near to BSD and a supervising evening/overnight staff person. Because Provincetown failed to provide this, it has no other option than reimbursing Parents not only for the lodging, but for Mother’s time as this staff person. Although paying a parent to parent her child may appear offensive, it is necessary. Providing Anne with a residence with no supervision certainly was, and is not, an option. Provincetown could have, and can prospectively, hire a staff person who is not Anne’s mother. However, absent such, Mother had no choice other than staying in this residence with her daughter while BSD is in session. The First Circuit Court of Appeals made it clear that where a parent provides a service that should have been provided by the school district, reasonable reimbursement for her service is warranted. See Hurry v. Dr. Jerome Jones , supra . This case is no different. Mother is not seeking reimbursement for mothering her daughter, but for providing the necessary supervision that is far away from her Provincetown home.

ORDER

Pursuant to this decision, Provincetown shall amend Anne’s January 2004 – January 2005 IEP to include the residential and transportation related services necessary for Anne to receive her education at the Beverly School for the Deaf. Such shall include:

· Reasonable expenses for lodging at the Comfort Inn / Residence Inn;

· An evening/overnight staff person five days per week while school is in session

· Reasonable expenses for breakfast and evening meals for Anne if not provided at BSD;

· Reimbursement for roundtrip transportation (at 34¢ per mile) between Anne’s weekday residence and BSD on week days; and

· Reimbursement for roundtrip weekend and school vacation transportation (at 34¢ per mile) between Anne’s weekday residence and her Provincetown residence.

Provincetown shall immediately seek to hire a supervising staff person. Until Provincetown provides such person, Mother shall be reimbursed for her time, since January of 2004, as the supervising evening/overnight staff person. If Mother chooses to continue staying with her daughter rather than have her daughter supervised by Provincetown’s hired person, she will be serving as her mother, not as a staff person and therefore not entitled to compensation. Finally, this extremely unusual situation renders it important that Provincetown renew its efforts to obtain the services locally so as to provide Anne with a FAPE within driving distance of her Provincetown residence.

DOE shall fulfill its responsibilities to Provincetown pursuant to the Circuit Breaker Reimbursement Guidelines (M.G.L. Ch. 71B §5A) for the lodging, board, and supervising evening/overnight staff-person.

So ordered by the Hearing Officer,

__________________________

Date: November 2, 2004


1

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


2

Provincetown’s October 15, 2004 letter from Attorney Sowyrda is entered as School Exhibit 4; DOE’s July 26, 2004 letter from Carolyn Wilson is entered as DOE Exhibit 1; and Marcia Mittnacht’s October 20, 2004 affidavit is entered as DOE Exhibit 2. Finally, Parents’/School’s Stipulation #5 is entered in to the record over the objection of DOE, based on the fact that it refers to relevant and credible information necessary for this decision.


3

Other schools were contacted and were deemed unacceptable because they lacked proficient Sign Exact English II personnel. (School Exhibit 1)


4

See Mapquest.com.


5

This cross-claim was filed against Provincetown and DOE, however, Parents withdrew their claim against DOE, and DOE was therefore dismissed as a party on July 20, 2004. Thereafter, on July 24, 2004, the BSEA joined DOE as a party pursuant to Provincetown’s Motion to Join.


6

See 34 CFR §300.24(a): “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 …”


7

See 603 CMR 28.02 (19): Related services shall have the meaning set forth in federal special education law at 34 CFR §300.24.


8

See 34 CFR §104.33c(c)(4): “ Free appropriate public education. … Residential placement . If a public or private residential placement is necessary to provide a free appropriate public education to a handicapped person because of his or her handicap, the placement, including non-medical care and room and board, shall be provided at no cost to the person or his or her parents or guardian.”


9

See 34 CFR §300.300(a)(1): “… each State receiving assistance under this part shall ensure that FAPE is available to all children with disabilities, aged 3 through 21, residing in the State …”;


10

At the request of the parties, the Hearing Officer agreed to decide the case based on the written record despite the lack of several affidavits and written legal memoranda received only from Parents.


11

In the current case, no one asserted that Provincetown was released of its responsibilities when it placed Anne at the BSD and Parents rented a temporary room in order that she could attend this school.


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