Student v. Brockton Public Schools and the Department of Youth Services and the Department of Elementary and Secondary Education – BSEA# 11-3408



<br /> Student v. Brockton Public Schools and the Department of Youth Services and the Department of Elementary and Secondary Education – BSEA# 11-3408<br />

COMMONWEALTH OF MASSACHUSETTS

BUREAU OF SPECIAL EDUCATION APPEALS

Student v. Brockton Public Schools & the Department of Youth Services & the Department of Elementary and Secondary Education

BSEA # 11-3408

Ruling on Parent’s “Motion for a Stay-Put”

Parent filed a Motion for an Order to Stay-Put. Brockton Public Schools (hereinafter, “Brockton”) and the Department of Youth Services (hereinafter, “DYS”) opposed Parent’s Motion.

FACTS1

Student is eighteen years old and is eligible for special education services. His last accepted IEP provided for placement in a residential school. He is currently incarcerated in a secure DYS facility at Westborough State Hospital until July 2011 pursuant to an order of a Massachusetts court. Student’s mother currently resides in Brockton. Parent filed a request for hearing against the Brockton Public Schools and the DYS on January 18, 2011 alleging that Student had been denied educational services by Brockton and DYS.

PARENT’S POSITION

Parent argues that Student is entitled to placement in a therapeutic residential school pursuant to his last accepted IEP. She argues that the “stay-put” provision of the IDEA requires that DYS place Student in a residential school. She further argues that the BSEA has jurisdiction over disputes “among parents, school districts, private schools, and state agencies involving any matter concerning the provision of a free appropriate public education to a student with special needs.” She states that Brockton and DYS did not afford parent a placement meeting before changing his placement from a residential school to a DYS placement.

BROCKTON’S POSITION

Brockton argues that the principles of “stay-put” are inapplicable to the determination of the setting in which Student receives educational services at this time as Student is not currently available for enrollment in a residential educational placement due to his being committed by the court to DYS. It argues that although Student’s last accepted IEP (with a partially accepted placement) specifies placement in a residential school, that placement cannot be implemented unless and until Student is released to the community and has been accepted at an appropriate school. In its proposed November 2010 IEP, Brockton acknowledged that Student’s “stay-put” placement would be residential educational school “once [Student] is released from DYS and available for placement in a residential educational setting.” Further, Brockton argues, the BSEA has no authority to countermand the court order resulting in Student’s incarceration. Finally, Brockton argues that court commitment to DYS and incarceration in a secure facility is not a placement decision under the IDEA.

DYS’ POSITION

DYS argues that the “stay-put” provisions of the IDEA do not apply to DYS as it is not an LEA and commitment to DYS is not an “educational placement.”

LEGAL STANDARD

The Individuals with Disabilities Education Act (IDEA), includes the following “stay- put” standard: “during the pendency of any proceedings conducted pursuant to this section, unless the State or local educational agency and the parents otherwise agree, the child shall remain in the then-current educational placement of such child.” 20 USC § 1415(j); 34 CFR §300.518.

The state special education regulations regarding “stay-put” read as follows:

In accordance with state and federal law, 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)

JURISDICTION of the BSEA

The BSEA has jurisdiction over disputes among parents, school districts, private schools, and state agencies involving any matter concerning the provision of a free appropriate public education to a student with special needs.

The BSEA has the authority to resolve educational disputes pursuant to Massachusetts state law M.G.L. c. 71B (popularly known as Chapter 766), and its implementing regulations, 603 CMR 28.00. The BSEA has jurisdiction to resolve educational disputes under federal law as well, in accordance with 20 U.S.C. 1401 et seq. (the Individuals with Disabilities Education Act, “IDEA”), 29 U.S.C. 794 (Section 504 of the Rehabilitation Act of 1973) and the regulations promulgated thereunder, 34 CFR 300 and 34 CFR 104 respectively. See BSEA Hearing Rules (Scope of Rules.)

ANALYSIS

Although Student’s last accepted IEP provides for Student to attend a residential school, Student is currently not available to attend a residential school because he has been committed by the juvenile court to DYS as a youthful offender. The stay-put provisions of the IDEA and state law do not apply to non-educational placements made by the juvenile court. As stated in its opposition to Parent’s motion, DYS is a juvenile justice agency, not a “state educational agency” or an LEA. Therefore, its placement of Student is not subject to the stay-put provision of the IDEA.

The IDEA outlines requirements for the provision of special education services to incarcerated students with disabilities. It does not, however, prevent courts from placing disabled students in juvenile justice facilities.

20 U.S.C. §1415 (K)(6)(A) provides:
(6) Referral to and action by law enforcement and judicial authorities. (A) Rule of construction. Nothing in this part [20 USCS §§ 1411 et seq.] shall be construed to prohibit an agency from reporting a crime committed by a child with a disability to appropriate authorities or to prevent State law enforcement and judicial authorities from exercising their responsibilities with regard to the disability . (Emphasis added.)

Similarly 34 CFR 300.535(a) provides:

§300.535 Referral to and action by law enforcement and judicial authorities.

1. Rule of construction. Nothing in this part prohibits an agency from reporting a crime committed by a child with a disability to appropriate authorities or prevents State law enforcement and judicial authorities from exercising their responsibilities with regard to the application of Federal and State law to crimes committed by a child with disability . (Emphasis added.)

Moreover, the BSEA simply does not have jurisdiction to modify a court ordered placement of a student in a juvenile justice facility. The Massachusetts Appeals Court has held that a juvenile adjudication did not constitute a change in placement under the IDEA. See Commonweath v. Nathaniel N. , 54 Mass.App.Ct. 200 (2002). Additionally, in a recent BSEA ruling, the hearing officer determined that “the BSEA’s administrative jurisdiction over other state agencies does not extend to the Massachusetts court system.” He therefore concluded that a hearing officer may not issue administrative order binding upon court departments, court offices or court agencies. In Re: Jay (BSEA # 11-0520, 2011)

In a factually similar case, a disabled student argued that he was procedurally denied a free appropriate public education when he was detained in a juvenile facility and was not offered a continuum of placement options. He further agued that he was substantively denied a free appropriate public education because placement at juvenile hall did not meet his unique needs. The hearing officer determined that since student was placed and maintained at “Juvenile Hall” via a court order, the respondents only had a responsibility to provide Student with educational services while he was maintained at “Juvenile Hall.” Upon a motion, the hearing officer dismissed all issues pertaining to the respondents’ obligation to offer a placement other than the juvenile justice facility. San Diego County Office of Education and San Diego County Office of Mental Health , 39 IDELR 169 (April 1, 2003).

Brockton has acknowledged, in its proposed IEP for the period from November 17, 2010 through November 17, 2011, that Student’s last accepted IEP required a residential school placement and has indicated that such a placement would be identified with the parent’s participation once Student is released from the DYS facility. As of this date, Student’s detained status makes it impossible for Brockton or the BSEA to alter his placement.

The BSEA’s jurisdiction, as cited above, is over disputes related to the provision of a free appropriate public education. The BSEA has authority to resolve educational disputes. It does not have the authority to alter an order made by a juvenile court.

For the above reasons, Parent’s Motion for an Order to Stay-Put is DENIED.

ORDER

The BSEA lacks authority to modify a court ordered placement in a juvenile facility. Therefore, Parent’s Motion is DENIED.

So Ordered by the Hearing Officer

_________________________________

Catherine M. Putney-Yaceshyn

Dated: April 5, 2011


1

The facts are as alleged by the parties in their memoranda and are only taken as facts for the purpose of deciding this Ruling.


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