COMMONWEALTH OF MASSACHUSETTS
Division of Administrative Law Appeals
Bureau of Special Education Appeals
In Re: School District1
BSEA # 12-0132
DECISION
This decision is issued 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 c. 71B), the state Administrative Procedure Act (MGL c. 30A), and the regulations promulgated under these statutes.
By agreement of the parties and pursuant to BSEA Hearing Rule XII, this matter is decided solely on the basis of documents that have been filed by Parent and that are marked as exhibits 1 through 18. The parties waived their right to make closing arguments.2
ISSUES
The issues to be decided in this case are as follows:
1. Whether, in order to receive a free appropriate public education, Student must be provided a residential educational placement and, in particular, must be placed at the Mill Street Lodge at McLean Hospital in Belmont, MA.
2. Whether Parent is entitled to reimbursement of any out-of-pocket expenses that he has incurred relative to Student’s placement at Mill Street Lodge since July 5, 2011.
FACTS
Educational Profile
Student is a sixteen-year-old young woman who resides with her father (Parent). Parent has legal and physical custody of Student. Exhibits 12, 18.
Student has many impressive qualities and strengths. She is very engaging and personable; she is funny, intelligent and caring. She is also very conscientious and diligent; she clearly wants to perform well; and she has a number of other, valuable personal strengths and resources. Given the emotional and behavioral challenges she has faced over a period of years (discussed below), she has shown “remarkable” resiliency and continues to be “eager” to be successful. Exhibits 10, 11.
Student has very significant emotional disabilities which, together with learning deficits, adversely affect her ability to attend school and make academic progress. Her current diagnoses include Post Traumatic Stress Disorder (PTSD), chronic type; Eating Disorder; Attention Deficit Hyperactivity Disorder; Borderline Personality Disorder; Major Depression; and Learning Disorder, not otherwise specified (NOS). Exhibits 4, 8, 10, 12.
Student presents with a relatively well-controlled exterior. But underneath, she struggles with a severe degree of emotional turmoil. She strongly suppresses her emotional experiences, which leads to a build-up of stress, released either outwardly in explosive outbursts or inwardly in the form of self-destructive behavior. She has struggled with suicidal ideations (severe suicidal thoughts) and self-harm for several years and has a history of dissociative episodes, nightmares, emotional outbursts and hypervigilance. Exhibits 8, 10, 11, 12.
Student has reported that she suffered emotional, verbal and physical abuse from her mother during most of her life, and was sexually abused by another female for approximately five years. Her history of trauma is likely at the root of many of her current emotional challenges, but it is also likely that academic stresses as a result of learning deficits have been an aggravating factor. Exhibits 9, 10.
Current Individualized Education Program (IEP) and Placement
Since July 5, 2011, Student has been placed at the Arlington School, pursuant to a partially-accepted IEP. The Arlington School is a private, therapeutic day placement located on the grounds of McLean Hospital. Also since July 5 th , Student has resided at the Mill Street Lodge, pursuant to a private placement by Parent. Mill Street Lodge is a residential therapeutic program for adolescent girls, which is also on the grounds of McLean Hospital. Exhibits 12, 18.
The School District’s currently-proposed IEP calls for Student to receive all of her education within a therapeutic day placement. No additional services are proposed. Parent has fully accepted the IEP, except that he seeks a residential (rather than day) placement. Exhibits 12, 18.
Educational History
During 9 th grade (2009-2010 school year), Student had emotional difficulties. She cut herself, engaged in other self-destructive behaviors, had uncontrollable “melt-downs” and angry outbursts, and was depressed and anxious. Throughout this school year, she was a regular education student and was not referred to special education for evaluation. Exhibit 18.
During 10 th grade (2010-2011 school year), Student’s out-of-control and self-harming behaviors continued, and her depression and anxiety worsened. She experienced many dissociative episodes (“black-outs”) at home and school. Throughout this school year, she continued to be a regular education student and was not referred to special education for evaluation. Exhibit 18.
On November 16, 2010 (the fall of her 11 th grade), Student was admitted to a hospital emergency room following disclosure that she had taken an intentional overdose of Ibuprofen (up to 100 pills) the previous day. On November 16 th , she was discharged from the emergency room and admitted to the Burncoat Family Center (Burncoat), which is a Community Based Acute Treatment (CBAT) program. Student resided there until she was discharged to her home on November 27, 2010. Exhibits 3, 9, 18.
The Burncoat discharge summary reflects that Student reported she has been depressed for at least a year, having flashbacks and nightmares about her abuse, and had poor sleep (three hours per night). The psychiatric evaluation during the Burncoat admission reflects a diagnosis of a Major Depressive Disorder and PTSD. The evaluation noted that the PTSD is from emotional abuse by her mother and sexual molestation. Exhibits 3, 4.
Upon her discharge from Burncoat to her home on November 27, 2010, Student continued to experience significant difficulties at home and school. For example, her self-harming behaviors continued, her relationships with peers deteriorated, and her grades declined. Exhibit 18.
During the end of January and first part of February 2011, Student’s difficulties became even more pronounced. She demonstrated increased dysregulation in mood, behavior, relationships and cognition. Parent noted an increase in lethargic mood, poor hygiene, and a decreased interest in self-care and grooming. Student experienced stress at school with peers and with school work, and her grades were declining. At home, she had become isolated from her family, refusing to do what she was told to do, doing things that she had been told not to do, and becoming verbally and physically aggressive (mostly towards herself and objects) when confronted. She would yell, shake, swear and cry uncontrollably. Calming her sometimes required almost full-body contact (nearly lying on top of her). During this time, Student had been making superficial cuts on the upper parts of her legs. On February 11, 2011, she stopped going to school. During this time, she continued to be a regular education student who had not yet been referred to special education for evaluation. Exhibits 8, 9, 18.
On February 26, 2011, Student was re-admitted to Burncoat where she remained until she was discharged on April 11, 2011 to a residential program at McLean Hospital. Exhibit 8.
At Burncoat during her re-admission, Student experienced multiple episodes of high-level emotional and behavioral dysregulation that resulted in the need for physical intervention and one-to-one adult supervision to maintain safety. At times during school, she stood up in class, walked out of the room and attempted to run from the building. She would then scream, cry and physically try to push adults away for up to an hour at a time. She punched the wall so hard on multiple occasions that she was taken to the hospital for an x-ray, which showed that she had not broken her hand. During one period of escalation, she demonstrated high level of panic and disorganization, making suicidal statements and threatening to run from the program, resulting in Student being taken to a hospital for evaluation. Exhibit 8.
Nevertheless, over the course of her admission at Burncoat, Student improved to the point that, near the end of her stay, she was having almost no extended mood or behavioral episodes; and when she did become upset, she was able to maintain control of herself. Yet, even at discharge, she continued to struggle with self-destructive behaviors (pulling out her hair, superficial cutting). At discharge, her diagnoses were Mood Disorder, NOS and PTSD. Exhibit 8.
On March 21, 2011, Parent requested that the School District evaluate his daughter because of mental health issues that had been interfering with her education. On March 22, 2011, the School District proposed a number of evaluations, including educational and psychological evaluations, to which Parent gave consent on March 29, 2011 Exhibits 5, 6.
On April 11, 2011, Student was discharged from Burncoat to the 3East Intensive Dialectical Behavioral Therapy Unit (3East), which is a residential program at McLean Hospital that utilizes Dialectical Behavioral Therapy (DBT)3 as a principal means of therapy. Through the present, she has resided first at this 3East residential program and then at two other 3East residential programs at McLean, as discussed below. Exhibit 8.
On May 14, 2011, Student received a neuropsychological evaluation. The evaluation occurred as a result of a referral from Student’s therapist at 3East. The evaluation included review of records, behavioral observation, cognitive testing and emotional/personality testing, including projective testing. The evaluation provided a special education profile (described above within “Educational Profile”) which was consistent with other reports. The evaluation determined Student’s diagnoses to be PTSD and Learning Disorder, NOS. Exhibit 10.
The neuropsychological evaluation found that because Student struggles with pervasive and complex emotional and learning challenges (including substantial emotional dysregulation and severe symptoms of PTSD), she requires comprehensive therapeutic treatment. The evaluation report recommended that she be placed within an educational program in which psychotherapy is fully integrated, and that she continue with comprehensive psychological supports, including individual and group therapy. Exhibit 10.
On May 31, 2011, the 3East Clinical Psychologist and Medical Director wrote a letter “To Whom It May Concern” that was addressed to the School District. The letter described Student’s history of severe emotional and behavioral difficulties, but noted that since her admission to 3East, she had been successful in significantly decreasing her self-injurious behaviors as well as suicidal ideations, and further noted that gains were being made in family therapy with Student and Parent. The letter also stated that on May 10, 2011, Student was admitted to a Step-Down Unit at McLean Hospital—a similar, DBT residential unit at 3East with increased freedom and exposure to typical adolescent stressors, such as cell phones, internet use, independent walks, and extended passes home. Exhibit 11.
However, the May 31, 2011 letter from the 3East Clinical Psychologist and Medical Director then explained that with greater exposure to these stressors, Student began to struggle with a return to suicidal ideation, increased urges to self-injury and increased emotional dysregulation. This made it clear to Student’s clinicians that she required greater support for an extended period of time as she practices skills in the context of academic, social and family stressors, and that without this support, she is likely to return to self-destructive behaviors. Exhibit 11.
Finally, the May 31 st letter concluded that Student is unable to live outside of a therapeutic residential setting. The letter recommended that Student attend a “therapeutic residential school that supports her educational needs as well as allows her to continue to be treated using DBT in order to support the gains that she has made thus far and, ultimately, support a successful transition home and return to school.” Exhibit 11.
Student’s own undated statement reflects that she found her stay at 3East to be extremely helpful (particularly as compared to her earlier placements at Burncoat) and that, in her opinion, further time within a residential therapeutic setting was needed:
In the simplest form I can say, they [3East] changed my life. They recognized how severely I was suffering, and we got to work right away. … I have seen such a change in my behavior that it amazes me. … I can live my every day life without self harm and consistently thinking about suicide. I still have a lot of work to do …. And after the summer program, going down to Mill Street and be [sic] going up to Arlington for my 11 th grade year would be best. I was thinking about it for two weeks before I came to the decision that this is what’s best for me in my recovery. [Exhibit 9.]
On June 9 and 21, 2011, the School District’s IEP Team met and determined that Student was eligible for special education services. The Team proposed placement in a private day school, specifically, the Arlington School. On June 28, 2011, Parent accepted the IEP, except that he noted his request for a residential placement. Parent also notified the School District of his intent to privately place his daughter in a residential setting and seek reimbursement from the School District. Exhibits 12, 18.
By letter of June 30, 2011, Student was accepted by the Arlington School for placement to commence on July 5, 2011. Student’s acceptance into this school was expressly made contingent upon her living in a structured residential living program, which would be provided by the Mill Street Lodge. The School District responded by agreeing to placement at Arlington School, but noted that it was only proposing a private day placement. Exhibits 13, 14.
On July 5, 2011, Student was placed at the Arlington School. On the same day, she was also transferred to the Mill Street Lodge where she has resided through the present. Mill Street Lodge is part of the 3East adolescent DBT continuum of care services at McLean Hospital. Exhibits 1 (attachment B), 18.
On July 29, 2011, the May 14, 2011 neuropsychological evaluation (discussed above) was updated through follow-up testing for the purpose of investigating weaknesses revealed during the initial evaluation. This additional testing focused on Student’s language, visuo-spatial performance, memory, attention, executive functioning, and academic performance. The evaluation report recommended a number of specific learning supports. In addition, the report recommended a residential program that would provide Student “with comprehensive support in areas of daily living that she needs and that would not be available in a day program.” Exhibit 1 (attachment A).
On September 19, 2011, Student’s DBT therapist, who is also the head of her treatment and is a clinical psychologist, wrote a letter “To Whom It May Concern” in order to provide a treatment update and recommendations. In the letter, Student’s therapist reviewed her history at McLean Hospital and her current clinical profile. He concluded that Student “has made significant gains refraining from self-destructive behaviors and begun to achieve some academic success and regain her confidence as a student.” However, he cautioned that “[w]ithout the structure and support of a residential setting, it is unlikely that [Student] will currently be able to manage in a school setting. Given how difficult transitions can be for [Student], removing her from the Arlington School and Mill St. Lodge at a time when she is demonstrating some success could be quite detrimental.” He therefore recommended that in light of Student’s emotional and educational needs, she should “continue in her current placement and with her treatment team at the Arlington School and Mills Street Lodge.” Exhibit 1 (attachment C).
On December 9, 2011, the Mill Street Lodge Director of Clinical Services, the Mill Street Lodge Medical Director and Student’s therapist wrote a letter “To Whom it May Concern”. The three clinicians concluded that without residential services, including “round the clock access to a treatment team that is highly proficient in Dialectical Behavioral Therapy,” Student is “very likely to rapidly decompensate, engage in self-harm and/or other destructive and high-risk behaviors resulting in psychiatric hospitalization and having a negative impact on her academic performance and ability to succeed in school.” Exhibit 17.
Student has continued to reside at the Mill Street Lodge and attend the Arlington School through the present. Exhibit 18.
LEGAL STANDARDS
It is not disputed that Student is an individual with a disability, falling within the purview of the federal Individuals with Disabilities Education Act (IDEA)4 and the Massachusetts special education statute.5
The IDEA was enacted “to ensure that all children with disabilities have available to them a free appropriate public education [FAPE] that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living.”6 The Massachusetts special education statute also includes a FAPE requirement.7
Student’s right to FAPE is assured through the development and implementation of an individualized education program or IEP.8 An IEP must be custom-tailored to address Student’s “unique” educational needs.9 The “IEP … must target all of a child’s special needs, whether they be academic, physical, emotional, or social”.10
As a general rule, FAPE mandates proposed special education and related services that are “reasonably calculated to enable [Student] to receive educational benefits.”11 This “does not imply that a disabled child is entitled to the maximum educational benefit possible.”12
On multiple occasions, however, the Supreme Court has also referenced a FAPE standard that a student is entitled to “meaningful access” to his or her education.13 Similarly, the First Circuit and several Massachusetts federal district court judges,14 as well as other Circuit courts have utilized a standard of a “meaningful educational benefit”.15
In the application of these standards, federal case law clarifies that “levels of progress must be judged with respect to the potential of the particular child”16 because “ benefits obtainable by children at one end of the spectrum will differ dramatically from those obtainable by children at the other end, with infinite variations in between ”.17 Thus, in sum, the “IDEA requires an IEP to confer a meaningful educational benefit gauged in relation to the potential of the child at issue.”18
FAPE is defined by the IDEA to include state educational standards,19 which may exceed the federal floor .20 Massachusetts regulatory standards require that Student’s IEP Team “include specially designed instruction or related services in the IEP designed to enable the student to progress effectively in the content areas of the general curriculum.”21 Similarly, the Massachusetts Department of Elementary and Secondary Education-mandated IEP form requires a school district to include within each IEP the specially-designed instruction “necessary for the student to make effective progress” both in the general curriculum and in “other educational needs” including, communication, behavior, language, and social/emotional needs.22 Massachusetts statutory standards further require that special education services be “ designed to develop the [student’s] educational potential” .23 And, the stated purpose of Massachusetts special education regulations is “to ensure that eligible Massachusetts students receive special education services designed to develop the student’s individual educational potential.”24 Thus, in sum, Massachusetts standards require that a proposed IEP include specialized instruction and related services designed to enable Student to make effective progress and develop her individual educational potential.
Under both federal and Massachusetts law, FAPE must be provided in the least restrictive environment. The phrase “least restrictive environment” means that, to the maximum extent appropriate for the particular student, the student is to be educated with other students who do not have a disability.25 A residential placement is properly considered more restrictive than a day program, even when the day program places Student in a substantially separate special education program.26 The appropriate standard, as reflected within several First Circuit decisions, is whether the educational benefits to which Student is entitled can only be provided through around-the-clock special education and related services, thus necessitating placement in an educational residential facility.27
In the event that a school district fails to provide FAPE, a parent may enroll the student in a private placement and seek reimbursement as equitable relief.28
As the moving party seeking relief, Parent has the burden of persuasion.29
DISCUSSION
As reflected within the Facts section of this Decision (above), Student has suffered from a combination of extreme emotional disabilities that, together with her learning deficits, have marginalized her ability to participate and function within an academic environment. Only relatively recently with her admission to 3East on April 11, 2011, has she been able to receive effective therapeutic services (specifically, DBT) which have offered her the opportunity to learn to function with substantially decreased emotional and behavioral difficulties. It is clear from the evidence that these emotional and behavioral difficulties have a direct and substantial impact upon Student’s ability to access an educational environment and to learn. Exhibits 3, 4, 8, 11, 15, 17, 18.
It is noteworthy that even after intensive and appropriate therapeutic services were provided within the context of a residential setting for approximately one month from April 11, 2011 to May 10, 2011, Student struggled with a return to suicidal ideation, increased urges to self-injury and increased emotional dysregulation as soon as she was provided increased freedom and exposure to typical adolescent stressors, such as cell phones, internet use, independent walks, and extended passes home. It became apparent to her clinicians that Student required intensive, around-the-clock support for an extended period of time as she practices skills in the context of academic, social and family stressors. The clinicians concluded that without this support, she would likely return to self-destructive behaviors; and with this support, she would likely make substantial progress commensurate with her educational potential. Exhibit 11.
A more recent evaluation and letters from Student’s clinicians further confirm that these conclusions (regarding Student’s need for around-the-clock services) continue to apply. The letters and evaluation make clear that it is only through residential services, using DBT therapy, that Student will likely make meaningful or effective progress commensurate with her potential, and it is only through these services that she will likely have an opportunity to transition back to living at home and be educated in an in-district school placement.
For example, a July 29, 2011 update of an earlier neuropsychological evaluation concluded that Student required a residential placement to provide her “with comprehensive support in areas of daily living that she needs and that would not be available in a day program.” Exhibit 1 (attachment A).
Then, in a September 19, 2011 letter, Student’s therapist, who is a clinical psychologist and the head of her treatment team, wrote that “[w]ithout the structure and support of a residential setting, it is unlikely that [Student] will currently be able to manage in a school setting.” Student’s therapist clarified why around-the-clock access to services is necessary for Student to make effective progress with her therapy and access her education:
Up until this point because of her highly volatile moods and self-destructiveness, her symptoms and behaviors have profoundly impacted her ability to be educated. She now has a fighting chance, but only in an environment that can tolerate and deal with her mood reactivity in the moment that it is happening , as there are also instances where she can put DBT practice in place, real-time. [Exhibit 1 (attachment C). Emphasis supplied.]
Similarly, in a December 9, 2011 letter, the Mill Street Lodge Director of Clinical Services, the Mill Street Lodge Medical Director and Student’s therapist noted Student’s current need for “round the clock access to a treatment team that is highly proficient in Dialectical Behavioral Therapy (DBT)” and concluded:
We continue to see [Student] as needing a highly structured residential placement at this time and while she attends high school. Without this level of care we believe she is very likely to rapidly decompensate, engage in self-harm and/or other destructive and high-risk behaviors resulting in psychiatric hospitalization and having a negative impact on her academic performance and ability to succeed in school. [Exhibit 17.]
These opinions, by those who are working directly with Student and who best understand her educational and therapeutic needs, are unrebutted, credible and persuasive.
I also note that as a condition of acceptance, the Arlington School “required [Student] to be placed at Mill Street Lodge as they also felt she required residential level of care.” And, Student herself has eloquently stated her opinion that she needs to continue with residential services at McLean. Exhibits 1 (attachment C), 9 (Student’s statement, quoted above), 13.
This evidence is persuasive, and I so find, that the educational benefits to which Student is entitled can only be provided through around-the-clock special education and related services, thus necessitating placement in an educational residential facility. There remains only the question of whether the combination of the Arlington School and the Mill Street Lodge is appropriate for this purpose.
It is not disputed that the Arlington School is appropriate as Student’s day placement. Through a partially-accepted IEP, the School District is currently placing Student at the Arlington School. Exhibit 12. I therefore turn to the question of whether the Mill Street Lodge should be ordered as the residential component of Student’s placement.
The Mill Street Lodge is a very small (five girls) dedicated DBT residential setting that is designed to compliment the services provided by the Arlington School. It is the longer term group care component of the 3East continuum of residential services for adolescents at McLean Hospital. Exhibit 1 (attachment C).
DBT therapy has been the only therapeutic intervention that has been effective in addressing Student’s extensive emotional and behavioral challenges. The unanimous recommendation of her service providers is that Student continue to receive DBT services as her principal therapeutic intervention to address her emotional and behavioral difficulties. Exhibits 1 (attachments B, C), 11, 17.
As discussed above, not only is it essential that DBT services be provided to Student, but it is equally important that her DBT skills be taught and utilized around the clock. Mill Street Lodge provides a unique opportunity for Student to practice her DBT skills in a residential setting in a manner that is coordinated with clinical and academic services that she receives in other settings. Student’s providers at Mill Street Lodge, her clinical and educational teams at the Arlington School, and her therapist are in frequent contact in order to work closely to meet Student’s goals. This consistency and coordination of interventions and service providers is essential for Student to make effective or meaningful progress. Exhibit 1 (attachments B, C), 11, 17.
Finally, I note that over the relatively short period of time during which Student has attended the Arlington School while residing at the Mill Street Lodge, she has made effective and meaningful progress. Exhibits 1 (attachments B, C), 16, 17.
On the basis of this evidence, I find that the Mill Street Lodge is exceptionally well suited to provide an appropriate residential component of services while Student attends the Arlington School. I further find that the evidence was persuasive that there exists no other residential facility that would be appropriate for Student while she attends the Arlington School and receives DBT as her principal therapeutic service.
For these reasons, I conclude that the current IEP is not reasonably calculated to provide Student with a free appropriate public education and that Student requires a residential educational placement consisting of the Arlington School and the Mill Street Lodge.
Parent also seeks reimbursement for out-of-pocket expenses that he has incurred relative to Student’s placement at Mill Street Lodge, which began on July 5, 2011.
Relevant legal standards provide that if a school district fails in its obligation to provide FAPE to a student with a disability, a parent may enroll his daughter in a private placement and seek retroactive reimbursement for the cost of the private placement. A BSEA Hearing Officer may require the school district to reimburse the parent for the cost of that enrollment only if the Hearing Officer finds both that (1) the school district had not made FAPE available to the student in a timely manner prior to that enrollment and (2) the private placement was appropriate. In such circumstances, the school system may be found to be responsible for the out-of-pocket costs incident to that private placement, including tuition and transportation.30
For reasons explained above, I find that it should have been apparent to the School District no later than May 31, 2011 (by which time Student had been attending 3East for approximately seven weeks and had been previously admitted to Burncoat for an additional seven weeks) that Student required a residential educational placement in order to make effective or meaningful progress. Exhibits 8 (Burncoat discharge summary), 11 (May 31, 2011 letter from 3East clinicians to the School District). Accordingly, the School District’s proposed IEP for the period 6/22/11 to 6/21/12 failed to provide Student with FAPE because the IEP proposed only a day educational program; and when the IEP was proposed, she required residential educational services. I have found Parent’s private placement at Mill Street Lodge to be appropriate. Parent provided the requisite notice to the School District that he would be privately placing his daughter at the Mill Street Lodge and seeking reimbursement. Exhibit 18. I find that the equities strongly favor reimbursement in the instant dispute.
For these reasons, I conclude that the School District must reimburse Parent for any out-of-pocket expenses (including tuition and transportation) incident to Parent’s private placement of Student at Mill Street Lodge beginning July 5, 2011.
ORDER
In order to receive a free appropriate public education, Student shall be provided a residential educational placement, which shall consist of placement at the Arlington School and the Mill Street Lodge, both of which are located at the McLean Hospital in Belmont, MA. The School District shall immediately commence funding of the Mill Street Lodge and shall continue funding of the Arlington School. The School District shall amend the current IEP to reflect Student’s need for a residential educational placement at the Arlington School and Mill Street Lodge.
The School District shall reimburse Parent for any out-of-pocket expenses (including tuition and transportation) incident to Parent’s private placement of Student at the Mill Street Lodge beginning July 5, 2011.
By the Hearing Officer,
William Crane
Dated: January 10, 2012
COMMONWEALTH OF MASSACHUSETTS
Division of Administrative Law Appeals
Bureau of Special Education Appeals
THE BUREAU’S DECISION, INCLUDING RIGHTS OF APPEAL
Effect of the Decision
20 U.S.C. s. 1415(i)(1)(B) requires that a decision of the Bureau of Special Education Appeals be final and subject to no further agency review. Accordingly, the Bureau cannot permit motions to reconsider or to re-open a Bureau decision once it is issued. Bureau decisions are final decisions subject only to judicial review.
Except as set forth below, the final decision of the Bureau must be implemented immediately. Pursuant to M.G.L. c. 30A, s. 14(3), appeal of the decision does not operate as a stay. Rather, a party seeking to stay the decision of the Bureau must obtain such stay from the court having jurisdiction over the party’s appeal.
Under the provisions of 20 U.S.C. s. 1415(j), “unless the State or local education agency and the parents otherwise agree, the child shall remain in the then-current educational placement,” during the pendency of any judicial appeal of the Bureau decision, unless the child is seeking initial admission to a public school, in which case “with the consent of the parents, the child shall be placed in the public school program”. Therefore, where the Bureau has ordered the public school to place the child in a new placement, and the parents or guardian agree with that order, the public school shall immediately implement the placement ordered by the Bureau. School Committee of Burlington, v. Massachusetts Department of Education , 471 U.S. 359 (1985). Otherwise, a party seeking to change the child’s placement during the pendency of judicial proceedings must seek a preliminary injunction ordering such a change in placement from the court having jurisdiction over the appeal. Honig v. Doe , 484 U.S. 305 (1988); Doe v. Brookline , 722 F.2d 910 (1st Cir. 1983).
Compliance
A party contending that a Bureau of Special Education Appeals decision is not being implemented may file a motion with the Bureau contending that the decision is not being implemented and setting out the areas of non-compliance. The Hearing Officer may convene a hearing at which the scope of the inquiry shall be limited to the facts on the issue of compliance, facts of such a nature as to excuse performance, and facts bearing on a remedy. Upon a finding of non-compliance, the Hearing Officer may fashion appropriate relief, including referral of the matter to the Legal Office of the Department of Education or other office for appropriate enforcement action. 603 CMR 28.08(6)(b).
Rights of Appeal
Any party aggrieved by a decision of the Bureau of Special Education Appeals may file a complaint in the state court of competent jurisdiction or in the District Court of the United States for Massachusetts, for review of the Bureau decision. 20 U.S.C. s. 1415(i)(2).
An appeal of a Bureau decision to state superior court or to federal district court must be filed within ninety (90) days from the date of the decision. 20 U.S.C. s. 1415(i)(2)(B).
Confidentiality
In order to preserve the confidentiality of the student involved in these proceedings, when an appeal is taken to superior court or to federal district court, the parties are strongly urged to file the complaint without identifying the true name of the parents or the child, and to move that all exhibits, including the transcript of the hearing before the Bureau of Special Education Appeals, be impounded by the court. See Webster Grove School District v. Pulitzer Publishing Company , 898 F.2d 1371 (8th Cir. 1990). If the appealing party does not seek to impound the documents, the Bureau of Special Education Appeals, through the Attorney General’s Office, may move to impound the documents.
Record of the Hearing
The Bureau of Special Education Appeals will provide an electronic verbatim record of the hearing to any party, free of charge, upon receipt of a written request. Pursuant to federal law, upon receipt of a written request from any party, the Bureau of Special Education Appeals will arrange for and provide a certified written transcription of the entire proceedings by a certified court reporter, free of charge.
1
At the request of both parties, the name of the School District is not identified in this Decision, and other names and personally identifiable information have also been redacted in order to protect the privacy of the Student.
2
Parent is represented by Attorney Constance Hilton, and the School District is represented by Thomas Nuttall.
3
DBT is an empirically-supported treatment approach for treating the difficult cluster of symptoms and traits of adolescents (such as Student) with emerging symptoms of Borderline Personality Disorder. DBT follows a specific treatment hierarchy, beginning with life-threatening behavior (such as suicide attempts, suicidal ideations and self-injury), then focusing on therapy-interfering behavior (i.e., anything that gets in the way of treatment), and finally addressing quality of life goals by seeking to decrease behaviors incompatible with the quality of life desired by the patient. Four specific skill sets are taught: mindfulness, interpersonal effectiveness, emotion regulation and distress tolerance. Exhibit 1 (attachments B, C).
4
20 USC 1400 et seq .
5
MGL c. 71B.
6
20 USC 1400(d)(1)(A). See also 20 USC 1412(a)(1)(A).
7
MGL c. 71B, ss. 1, 2, 3.
8
20 USC 1414(d)(1)(A)(i)(I)-(III); Honig v. Doe, 484 U.S. 305, 311-12 (1988) ; Rowley, 458 U.S. at 182.
9
20 USC 1400(d)(1)(A) (IDEA enacted “to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living”); 20 USC 1401(9), (29) ( “free appropriate public education” encompasses “special education and related services,” including “specially designed instruction, at no cost to Parents, to meet the unique needs of a child with a disability”); Honig , 484 U.S. at 311 (FAPE must be tailored “to each child’s unique needs”); Rowley, 458 U.S. at 181 (FAPE must be “tailored to the unique needs of the handicapped child by means of an ‘individualized educational program’ (IEP)”); Lessard, , 518 F.3d at 23 (referencing the school district’s “ obligation to devise a custom-tailored IEP”); 603 CMR 28.02 (20) (“ Special education shall mean specially designed instruction to meet the unique needs of the eligible student or related services necessary to access the general curriculum and shall include the programs and services set forth in state and federal special education law.”).
10
Lenn v. Portland School Committee , 998 F.2d 1083, 1089 -1090 (1 st Cir. 1993) (emphasis in original, internal citations omitted).
11
Bd. of Educ. of the Hendrick Hudson Central Sch. Dist. v. Rowley, 458 U.S. 176, 207 (1982). See also Lessard v. Wilton Lyndeborough Cooperative School Dist. , 518 F.3d 18, 23 (1 st Cir. 2008) (“IEP must be individually designed to provide educational benefit to [a particular] handicapped child.”) (internal quotations and citations omitted).
12
Lessard , 518 F.3d at 23 (citations omitted). See also Rowley, 458 U.S. at 197, n.21 (“ Whatever Congress meant by an “appropriate” education, it is clear that it did not mean a potential-maximizing education.”).
13
See Cedar Rapids Community School Dist. v. Garret F. ex rel. Charlene F ., 526 U.S. 66, 79 (1999) (IDEA dispute “is about whether meaningful access to the public schools will be assured”); Irving Independent School District v. Tatro , 468 U.S. 883, 891 (1984) (“Congress sought primarily to make public education available to handicapped children and to make such access meaningful” ) (internal quotations omitted ); Rowley, 458 U.S. at 192 (“in seeking to provide … access to public education, Congress did not impose upon the States any greater substantive educational standard than would be necessary to make such access meaningful”).
14
See Murphy v. Timberlane Regional School Dist . 22 F.3d 1186, 1196 (1 st Cir. 1994) (referencing IDEA standard of a “federal basic floor of meaningful, beneficial educational opportunity”) ; Town of Burlington v. Dep’t of Educ ., 736 F.2d 773, 789 (1st Cir. 1984) (same), aff’d 471 U.S. 359 (1985); Dracut School Committee v. Bureau of Special Educ. Appeals of the Massachusetts Dept. of Elementary and Secondary Educ ., 2010 WL 3504012, at *12 (D.Mass. 2010); (using a meaningful education benefit standard to determine appropriateness of transition services); DB v. Sutton, 07-cv-40191-FDS (D.Mass. 2009) (“meaningful progress … is the hallmark of educational benefit under the [federal] statute”); Hunt v. Bureau of Special Education Appeals , 109 LRP 55771, CA No. 08-10790-RGS (D.Mass. 2009) (“School districts provide a FAPE by designing and implementing an IEP ‘reasonably calculated’ to insure that the child receives meaningful ‘educational benefits’ consistent with the child’s learning potential” citing Rowley ). The First Circuit and Massachusetts federal district courts have sometimes articulated a meaningful benefit standard in terms of effective results and demonstrable improvement. See, e.g., North Reading School Committee v. Bureau of Special Education Appeals, 480 F.Supp.2d 479, 489 (D.Mass. 2007) (educational program “must be reasonably calculated to provide effective results and demonstrable improvement in the various educational and personal skills identified as special needs”), quoting Lenn v. Portland Sch. Comm., 998 F.2d 1083, 1090 (1 st Cir. 1993) and Town of Burlington v. Dep’t of Educ., 736 F.2d 773, 788 (1 st Cir. 1984), aff’d 471 U.S. 359, 105 S.Ct. 1996, 85 L.Ed.2d 385 (1985).
15
See, e.g., G.S. v. Cranbury Tp. Bd. of Educ ., 2011 WL 5357633, 3 (3 rd 2011) (“To be appropriate under the IDEA, an IEP must provide meaningful access to education and confer some educational benefit upon the child for whom it is designed. We have explained that the educational benefit must be more than trivial, and must offer the potential for significant learning and meaningful benefit.) (citations and internal quotations omitted); Houston Independent School Dist. v. V.P. ex rel. Juan P ., 582 F.3d 576, 583 (5 th Cir. 2009) (adopting a meaningful benefit standard) ; P. ex rel. Mr. and Mrs. P. v. Newington Bd. of Ed. , 546 F.3d 111, 119 (2 nd Cir. 2008) (“ door of public education must be opened in a meaningful way”); A.B. ex rel. D.B. v. Lawson , 354 F.3d 315, 319 (4 th Cir. 2004) (“state must provide children with ‘meaningful access’ to public education”); Alex R.. v. Forrestville Valley Community Unit School Dist. # 221, 375 F.3d 603, 612 (7 th Cir. 2004) (referencing standard of “whether the school district appropriately addressed the child’s needs and provided him with a meaningful education[al] benefit under the substantive prong of Rowley ”), cert. denied , 543 U.S. 1009 (2004).
16
Lessard , 518 F.3d at 29 .
17
Rowley , 458 U.S. at 202.
18
Deal v. Hamilton County Board of Education, 392 F.3d 840, 862 (6 th Cir. 2004) (internal quotations and citation omitted).
19
20 USC 1401(9)(b); Winkelman v. Parma City School Dist. , 550 U.S. 516, 524 (2007) (“education must … meet the standards of the State educational agency”).
20
Mr. I. v. Maine School Administrative District No. 55, 480 F.3d 1 , 11 (1 st Cir. 2007) (state may “ calibrate its own educational standards, provided it does not set them below the minimum level prescribed by the [IDEA]”) .
21
603 CMR 28.05 (4) (b).
22
See IEP form mandated for all Massachusetts school districts by the Massachusetts Department of Elementary and Secondary Education, at pages 2 of 8 and 3 of 8, which may be found at http://www.doe.mass.edu/sped/iep/forms/word/IEP1-8.doc See also exhibit 12(describing the specially-designed instruction proposed as “necessary for the student to make effective progress”).
23
MGL c. 71B, s. 1 ( term “special education” defined to mean “educational programs and assignments including, special classes and programs or services designed to develop the educational potential of children with disabilities.”). See also MGL c. 69, s. 1 (“paramount goal of the commonwealth to provide a public education system of sufficient quality to extend to all children the opportunity to reach their full potential”).
24
603 CMR 28.01(3).
25
20 USC 1400(d)(1)(A); 20 USC 1412(a)(1)(A); 20 USC 1412(a)(5)(A); MGL c. 71B, ss. 2, 3; 34 CFR 300.114(a)(2(i) ; 603 CMR 28.06(2)(c).
26
Walczak v. Florida Union Free School Dist ., 142 F.3d 119 (2nd Cir. 1998).
27
Gonzalez v. Puerto Rico Department of Education , 254 F.3d 350 (1 st Cir. 2001); Abrahamson v. Hershman , 701 F.2d 223, 228 (1 st Cir. 1983).
28
See Sch. Comm. of Town of Burlington, Mass. v. Dep’t of Educ. , 471 U.S. 359, 369-70 (1985) (ordering the reimbursement of parents for the unilateral placement of student in a private school).
29
See Schaffer v. Weast , 546 U.S. 49, 62 (2005) (burden of persuasion in an administrative hearing challenging an IEP is placed upon the party seeking relief).
30
20 USC 1412 (a)(10)(C)(ii); Florence County Sch. Dist. Four v. Carter , 510 U.S. 7, 11-13 (1993); Sch. Comm. of Burlington v. Dep’t of Educ., 471 U.S. 359, 370, 373-74 (1985); Diaz-Fonseca v. Puerto Rico , 451 F.3d 13, 31 (1 st Cir. 2006).