COMMONWEALTH OF MASSACHUSETTS
SPECIAL EDUCATION APPEALS
In Re: Newton Public Schools v. Student and Boston Public Schools BSEA # 04-3458
RULING ON STUDENT’S MOTION FOR CLARIFICATION OF STAY-PUT ORDER AND NEWTON PUBLIC SCHOOL’S MOTION FOR DETERMINATION OF STAY-PUT ORDER
On April 19, 2004, Parents in the above-referenced matter filed a Motion For Clarification of Stay-Put in the above-referenced matter. Accompanying documentation and exhibits were received on April 21, 2004. Also, on April 19, 2004, Newton Public Schools’ (hereinafter, “Newton”) filed a Motion Requesting Determination of Student’s Stay-Put Placement. During a Telephone Conference Call held on April 19 th the parties agreed that the motions should be decided on the documents. Newton’s exhibits were received on April 20, 2004.
The Relevant Facts in this matter are as follow:
1. Born on February 5, 1996, Student is an 8 year old second grader currently enrolled in the Newton Public Schools. She is a METCO program student resident of Boston, MA. (PE-1)
2. In September 2003, Student began her second grade in the Cabot School under an IEP that addressed her Specific Learning Disability.
3. On October 3, 2003, approximately one month after school began, Newton requested that Parent consent to placement of Student in the Elementary Stabilization Program (hereinafter, “ESP”) for an extended evaluation. (PE-2) The request was made because of Newton’s behavioral and academic concerns regarding Student. Student was scheduled to begin the extended evaluation on October 9, 2003. (PE-2) Parent consented to the evaluation and Student was placed in the ESP to begin her evaluation in October 2003. Parent states that she was told that the move was temporary and would last approximately two to six weeks. (PE-4)
4. The ESP is a short-term, full-day program, placement option for students grades K through 5 who are experiencing behavioral crisis, within the Newton Public Schools. (PE-3) The program’s intention is to create supports within the student’s home and community to ensure a successful transition back into the student’s neighborhood school. (PE-3) To date, student attends this program.
5. Student’s Team convened on October 3, 2003. (PE-1) Page 2 of the IEP states under the Heading “Why is the school district proposing to act?” that “This proposal is the result of a special education evaluation. [Student] has been identified as having a disability, displaying a lack of progress in the general education curriculum, and a need for specially designed instruction or related services to access the general curriculum.” (PE-1) Behavior, English and Mathematics were identified as areas affected by her disability and it was determined hat Student required participation in a “non-general education classroom setting with specially designed instruction.” (PE-1)
6. Newton found that Student was of overall average functioning, that her performance was negatively impacted by attentional and organizational difficulties, and that she presented with word retrieval issues. (PE-1)
7. The Team recommended that Student be placed at the Cabot Elementary School in Newton and that she receive the following services in the general education classroom: 30 minutes per week of occupational therapy and 30 minutes per week of speech and language to be provided by the speech therapist. (PE-1) Under direct services outside the general education classroom, Student would receive language arts/literacy by the special education staff at a rate of 120 minutes per week, four times per week; mathematics by the special education staff at a rate of 90 minutes per week, three times per week; speech/language by the speech therapist at a rate of 30 minutes once per week; occupational therapy at a rate of 30 minutes once per week; and, social-emotional services 30 minutes per week. (PE-1) The Placement Determination sheet in this IEP called for participation in a “Full Inclusion Program.” This IEP covered the period from October 4, 2003 through April 11, 2004. (PE-1) The IEP was forwarded to Parent on October 24, 2003, and Parent accepted the IEP’s program and placement in full that same day. (PE-1)
8. The Team reconvened on January 15, 2004. (SE-B) At this time the Team opined that Student’s disability affected all areas of the general curriculum including: English and Language Arts, History and Social Sciences, Science Technology, and Mathematics. Student’s behavior was also identified as an issue. (SE-B) The service delivery grid in this IEP called for the following direct services outside the general education setting: speech/language by the speech therapist at a rate of 60 minutes within a five day cycle (one times per five day cycle); social/emotional at a rate of 150 minutes within a five day cycle (five times per five day cycle); LD classroom /behavioral 329 minutes per day. (SE-B) The Team determined that Student should be educated in a substantially separate classroom in the Cabot Elementary School, but left open the determination regarding the ultimate appropriate placement. (SE-B) It was Newton’s position that Student should return to the Boston Public Schools.
9. On January 29, 2004, the Parties voluntarily participated in mediation, as a result of which, an agreement was entered into by the parties. (SE-A) It provided as follows:
The Proposed IEP (1/16/04) is accepted. The parties agree to the following process:
1. Newton Public Schools (NPS) staff or designee will assist [Mother] in registering [Student] in Boston Public Schools (BPS) [by February 6, 2004]; the accepted IEP will be given to BPS at time of registration.
2. NPS staff or designee will assist [Mother] in connecting with the BPS ETL and exploring appropriate BPS programs.
3. [Mother] will follow through with a pediatric appointment during Feb. school vacation, focusing on attentional issues and possible medication.
4. The mediation will reconvene on March 5, 2004, at 9:00 a.m. to discuss [Student’s] needs and possible programming.
5. While the above occurs, [Student] will remain in her current program at ESP. (SE-A)
The signature of both the Parent and the school’s representative appear in page 2
of the agreement. ( Id .)
1. The Parent accepted the January 2004 IEP in full on January 29, 2004. (SE-B)
2. Parent has since rejected the IEP’s recommendation for placement, and also disputes Student’s continued presence in the ESP program in Newton.
3. To date Student remains in the ESP where she has been for approximately 100 days. The Parties do not dispute the inappropriateness of this program and the determination of the appropriate placement for Student is the subject of a hearing currently before me. At this juncture, the parties seek only determination of Student’s Stay-Put placement.
Placement Pending Appeal (Stay-Put):
The Parties recognize the BSEA’s jurisdiction to hear this claim and request that Student’s Stay-Put Rights be clarified. M.G.L. c.15 and 71B; 603 C.M.R. 28.00 et seq.; 20 U.S.C. 1400 et seq.; 34 C.F.R. 300; 29 U.S.C. 794 et seq.; 34 C.F.R. 104.
As previously stated in In Re: Student vs. Weymouth Public Schools , BSEA # 04-3807 (April 23, 2004), “Under the IDEA, during the pendency of any proceeding pursuant to special education law, a student is entitled to remain in his/her then current educational placement unless the parents and the school district decide otherwise also known as “Stay-Put”. 20 U.S.C. 1415(j); Verhoeven v. Brunswick School Committee , 207 F.3d 1, 3 (1 st Cir. 1999). Massachusetts recognizes a student’s right to remain in his or her then current educational program and placement during the pendency of any dispute regarding program or services, unless the parents and the district agree otherwise. 603 C.M.R. §28.08 (7).”
The right to Stay-Put extends throughout the pendency of “ all ” the proceedings, administrative and judicial, regarding a student’s educational disputes until they are completed. S.W. and Joanne W. v. Holbrook Public Schools , 221 F. Supp. 2d 222 (2002); 20 U.S.C. 1415(j); Verhoeven v. Brunswick School Committee , 207 F.3d 1, 3 (1 st Cir. 1999). Consistent with 20 U.S.C. 1415(j), the Federal Regulations regarding the status of a child during the pendency of a proceeding state that:
1. Except as provided in § 300.526, during the pendency of any administrative or judicial proceeding regarding a complaint under 300.507, unless the State or local agency and the parents or the child agree otherwise, the child involved in the complaint must remain in his or her current educational placement.
2. If the complaint involves an application for initial admission to public school, the child with the consent of the parents, must be placed in the public school until the completion of all the proceedings.
3. If the decision of a hearing officer in a due process hearing conducted by the SEA or a State review official in an administrative appeal agrees with the child’s parents that a change of placement is appropriate, that placement must be treated as an agreement between the State or local agency and the parents for purposes of paragraph a of this section.
Consistent with the federal statute, the Massachusetts regulations regarding special education confer students “rights to IEP services and placement.” 603 CMR 28.08 (7). In pertinent part it states that
… during the pendency of any dispute regarding placement or services, the eligible student shall remain in his or her then current education program and placement unless the parents and the school district agree otherwise. 603 CMR 28.08 (7).
In the case of a Student with an accepted IEP, stay-put then presumes a placement proposed by the school district and accepted by the parents. Both the federal statute and the state regulations permit the parties to agree to a placement other than the one to which the student is entitled. Verhoeven v. Brunswick School Committee , 207 F.3d 1,3 (1 st Cir. 1999). Also, if disagreement exists between the parties, the stay-put placement cannot be one created for the purpose of conducting an extended evaluation. 603 C.M.R. 28.05 (2)(b).
In Massachusetts, a student’s Team is permitted to extend the evaluation period with the consent of the parents, if it finds that the evaluation information available to the Team is insufficient to develop the IEP. 603 C.M.R. 28.05 (2)(b). The pertinent section reads as follows:
(b) Evaluation information is inconclusive . If the Team finds the evaluation information insufficient to develop and IEP, the Team, with the parents’ consent, may agree to an extended evaluation period.
1. The extended evaluation period shall not be used to deny programs or services determined to be necessary by the Team. If, prior to the extended evaluation, the Team determines that sufficient information is available to identify some necessary objectives and services, the Team shall write a partial IEP that, if accepted by the parent, shall be immediately implemented by the district while the extended evaluation is occurring.
2. The extended evaluation period shall not be used to allow additional time to complete the required assessments under §28.04(2)(a).
3. If the parent consents to an extended evaluation, the Team shall document their findings and determine what evaluation time period is necessary and the types of information needed to develop an IEP, if appropriate. The Team may decide to meet at intervals during the extended evaluation, but in all cases shall reconvene promptly to develop or complete an IEP when the evaluation is complete.
4. The extended evaluation may extend longer than one week, but shall not exceed eight school weeks.
5. The extended evaluation shall not be considered a placement. 603 C.M.R. 28.05 (2)(b)
This regulations are unequivocal in their mandate that an extended evaluation “ shall not exceed eight school weeks” and “ shall not be considered a placement ”. 603 C.M.R. 28.05 (2)(b)(4 and (5).
Conclusions of Law:
Parent’s/Student’s counsel argues that a dispute exists between Newton and the Parent regarding the proposed program and placement recommended in January of 2004, as well as regarding Student’s continued presence in the ESP program in Newton. It is their position that Student is entitled to continued placed in the Cabot Elementary School under the IEP developed in October 2003, which called for substantially separate services for language arts/literacy, mathematics, speech and language, occupational therapy and social-emotional services, along with speech and language services and occupational therapy in the general education classroom.
Newton on the other hand argues that for stay-put purposes it is the IEP of January 2004, which must be followed. To the extent that the IEP of January 2004 establishes Student’s rights under stay-put, the facts in this case support this position. Newton further argues that the ESP program is the appropriate placement for Student because Parents agreed to this placement as appears in clause number 5 of the Mediation agreement dated January 29, 2004. This too is correct.
The Massachusetts regulations regarding special education make it clear that a placement that falls under 603 C.M.R. 28.05 (2)(b)(5), the extended evaluation, is not a placement . Similarly, it is not supposed to exceed eight weeks. The ESP program where Student has remained over the past 100 days is such a placement and therefore, cannot be considered for purposes of stay-put. The facts make it very clear that Student was meant to attend this program for a two to six week period. (PE-4) It was intended to be an evaluation and this is what Parent understood it to be. (PE-4)
Student’s Team reconvened in January 2004, an IEP was promulgated at that time calling for a substantially separate classroom at the Cabot Elementary School. Parent accepted this IEP in January 29, 2004. Also, on January 29, 2004, the Parent and the school district agreed through the mediation agreement that Student would “remain in the current program at ESP” until several other contingencies were resolved. (SE-A) The most important of these contingencies was exploration of possible placement of this METCO student in a Boston Public School’s program. In effect, the parties “agreed otherwise” through the mediation agreement. Verhoeven v. Brunswick School Committee , 207 F.3d 1,3 (1 st Cir. 1999). Instead of allowing the accepted IEP of January to dictate the parameters of Student’s rights under stay-put, the parties agreed to keep Student in the ESP program. (SE-A) Acceptance of the January 2004 IEP along with the language in the mediation agreement supersedes any previous acceptance of other IEPs by the Parent. The Federal statute provides that until all special education disputes are resolved “the child involved in the complaint must remain in his or her current educational placement.” 20 U.S.C. 1415(j). This language presumes the placement to which the student was entitled under an agreed upon IEP or one to which the parents and school district agreed. But for Parent’s agreement to Student’s continued placement in the ESP program, this program would have been an illegal placement under 603 C.M.R. 28.05 (2)(b). Nevertheless, the language in the mediation agreement dated January 29 th renders the ESP placement as Student’s “then current placement” by agreement of the parties in accordance with state and federal law.
Ruling:
Newton is ordered to continue Student’s placement in the ESP program during the pendency of the proceedings, unless the parties agree otherwise.
So Ordered by the hearing Officer,
_______________________________
Rosa I. Figueroa
Dated: April 26, 2004