COMMONWEALTH OF MASSACHUSETTS
SPECIAL EDUCAITON APPEALS
In Re: Student v. Dracut Public Schools and Melmark, Inc.
BSEA # 07-2528
Ruling on Dracut Public Schools’ Motion to Dismiss and Melmark Inc.’s Objection to Dracut Public Schools’ Motion to Dismiss
On February 12, 2007, Dracut Public Schools (hereinafter, Dracut) filed a Motion to Dismiss in the above referenced matter. Melmark, Inc. (hereinafter, Melmark) filed an Objection to Dracut’s Motion to Dismiss on February 20, 2007. On February 20, 2007, Parents filed a Motion for Extended Time to Respond to Defendant’s Motion to Dismiss and the Plaintiff’s Objection to Defendant’s Motion to Dismiss. Parents’ Motion for Extended Time to Respond was Granted on February 20, 2007, via separate Order issued by Hearing Officer William Crane. For purposes of this Ruling, Dracut’s exhibits have been labeled DE-A through DE-C and Melmark’s Exhibits have been labeled as ME-1 through ME-6. This Ruling is issued pursuant to the arguments and accompanying documents submitted by the Parties for my consideration.
Parents’ Request for Hearing stems from their rejection of the portion of Student’s IEP that failed to specify that Student requires one-to-one services during the day and residential portions of his program, and failure to state that Dracut will fund the one-to-one supervision. Parents’ request for Hearing states that prior to attending Melmark, Student spent 18 months at Hampstead Hospital and that he received one-to-one supervision during the entire hospitalization period. Parents also seek reimbursement to Melmark for the period of time Student has received one-to-one services from Melmark.
I. Position of the Parties:
Dracut’s Position:
According to Dracut, the BSEA is responsible to ensure that eligible students receive a Free Appropriate Public Education (hereinafter, FAPE). When Melmark accepted Student it did so under an IEP that called for provision of services and instruction in one-to-one and small group instruction. Melmark promotes itself as servicing severely disabled students by providing a one-to-one instruction model. Student is making great progress under the one-to-one instruction model at Melmark. Melmark’s decision-making issues regarding internal staffing and funding are not relevant to Dracut as long as Student is not being denied a FAPE. Therefore, Melmark’s claims are not relevant in a BSEA proceeding.
Melmark’s Position:
Melmark asserts that Dracut’s Motion to Dismiss should be denied because Dracut failed to comply with the BSEA procedural rules in that it failed to forward a copy of the motion or the exhibits to Melmark, which as a party, Melmark was entitled to receive. Melmark obtained a copy of the motion from the BSEA, but never saw the exhibits submitted by Dracut. Melmark states that such violation of the procedural rules is inexcusable. Dracut’s failure to serve its motion on Melmark in accordance with Rule VIIC of the Hearing Rules for Special Education Appeals should result in a denial of Dracut’s motion. Melmark further argues that when it evaluated Student to determine whether Student should be accepted to Melmark, Student had been stabilized at Hampstead Hospital and at that time did not appear to require one-to-one support. At that time Student was being serviced by an IEP promulgated by Greater Lawrence Educational Collaborative, which covered the period from April 29, 2005 to April 29, 2006 and did not call for constant one-to-one but rather one-to-one or small group instruction in the classroom setting. That IEP stated that Student’s needs in the residential placement could not be determined because of Student’s stay at Hampstead. According to Melmark, following Student’s release from Hampstead he showed toxicity to one of his medications which was discontinued, but not before causing Student’s behavior to spiral out of control. Student displayed self-injurious behaviors, mood variability and an increase in severe aggressive behaviors. This condition resulted in the need for Melmark to provide a one-to-one aide to keep Student safe. Melmark states that had it known at the time it reviewed Student’s IEP and performed the assessment that this could happen it would not have accepted Student.
Melmark states that the teacher to student ratio in the residential portion of its program is one-to-two, which is what its tuition rate allows. While the program has from time to time offered one-to-one services for limited periods of time, without additional funding, it is not able to provide a full time one-to-one for the residential portion. Melmark asserts that Student’s need for a dedicated one-to-one for the residential portion of Student’s program is critical to keep him and others safe at this time and to be able to implement his IEP. Melmark anticipates that Student will soon transition to one-to-two care. While Melmark has been providing the one-to-one service, it cannot continue to do so without it causing substantial financial strain on the program.
Melmark argues that contrary to Dracut’s assertion that the BSEA lacks jurisdiction to resolve this matter as it is not the proper venue, the BSEA has jurisdiction to resolve disputes concerning the identification, evaluation, placement, or the provision of a free appropriate education to students with special needs. Melmark asserts that the issue here is provision of educational services and therefore falls within the purview of the BSEA, that is, Dracut’s refusal to provide educational funding for the one-to-one services in the residential portion of Student’s placement. Melmark states that it can no longer continue to bear the financial strain caused by providing constant one-to-one support.
Melmark asserts that Dracut misrepresented the factual history of the Student’s IEP and Melmark’s assessment and states that Dracut is contractually obligated to provide additional funding for the one-to-one staffing required in Student’s IEP. According to Melmark, Dracut altered the references to the one-to-one staffing in Student’s IEP and arbitrarily removed the clinical rationale for said service without the Team’s assent and knowledge. If Dracut had not removed this information from the IEP it would have been obligated to provide funding for these services in accordance with Student’s Monitoring & Placement Agreement. Even if the one-to-one were a special accommodation, under the aforementioned Agreement the responsibility to fund the service would have fallen on Dracut. For these reasons, Melmark asserts that Dracut’s Motion to Dismiss should be denied.
Parents’ Position:
Parents assert that the BSEA has jurisdiction to resolve disputes among parents, school districts, private schools, and state agencies involving matters concerning the provision of a free appropriate public education to students with special needs under Massachusetts law and also under federal law. Parents claim that Student’s current placement at Melmark is in jeopardy because Dracut has failed and refused to pay for the extent of services Student requires and request that the BSEA does not dismiss this matter.
II. Facts:
1. Student is a ten-year-old child with disabilites within the purview of the Individuals with Disabilities Education Act (hereinafter, IDEA). Neither his entitlement, areas of disability (autism, behavior disorder and seizure disorder), or educational program and placement are at issue. (DE-C; ME-5) Student is a resident of Dracut.
2. From April 29, 2005 through April 2006 Student received special education and related services at the Greater Lawrence Educational Collaborative. His IEP called for participation in a “small structured classroom (small student to staff ratio) and constant one to one.” (DE-A) The original IEP proposed by Dracut, following the Team meeting of April 29, 2005, was partially rejected by Parents on May 12, 2005, because it failed to offer Student a residential placement. (ME-2)
3. Following a Team meeting in March 2006, Student’s placement determination was amended so as to provide him with a residential placement to address his significant special education needs. (DE-B; ME-2) This IEP was forwarded to Parents on or about April 24, 2006. Parents accepted this IEP in full on April 26, 2006. (ME-2)
4. The IEP offered to provide Student all of his services at Melmark’s residential program for the period from May 2006 through August 2006. (DE-B) Parent accepted the IEP amendment on April 26, 2006. ( Id. )
5. This IEP states that Student requires a highly specialized full day and full year program with teachers trained in the techniques of applied behavioral analysis and a team able to provide a multi-disciplinary approach. (DE-B) The IEP further states that Student
… will participate in a 6.5 hour per day, consistent full year program, per the school’s calendar of holidays and vacations. In addition, he has a residential placement providing 24- hour supervision, care and instruction 365 days per year. This level of intensity is required at this time in order for [Student] to make effective progress and prevent regression in all targeted areas. (DE-B)
6. Melmark serves the educational, rehabilitative and vocational needs of children and adolescents on the autism spectrum, with neurological diseases,with acquired brain injuries, severe challenging behaviors and dual diagnosis. (ME-1) Services are oriented to each student and are designed to meet their needs through a one-to two teacher-to-student ratio although it may provide one-to-one services for limited periods of time until students’ needs can be safely and appropriately met through the one-to-two teacher-to-student ratio. (ME-1) Melmark states that it has been successful in helping students step down from a one-to-one staff ratio to a one-to-two teacher staff ratio. The program offers residential care and supervised supportive services to promote student’s residential stability. Melmark is a Massachusetts approved school. (ME-1)
7. On or about April 24, 2006, Student began attending Melmark’s residential program, after being discharged from Hampstead Hospital. (ME-1) Melmark assessed Student for admission while he was hospitalized at Hampstead Hospital, at which time it appeared that Student would not require constant and continuous one-to-one staff-to-student services. (ME-1) Prior to placement, Melmark reviewed Student’s IEP and endorsed an Amendment to paragraph 1 of the IEP incorporating additional services. (DE-C; ME-5; ME-4)
8. Just before Student’s release from Hampstead Hospital, he showed toxicity to one of his medications which had to be discontinued. (ME-1) This resulted in Student spiraling out of control displaying mood variability and a significant increase in severe self-injurious and aggressive behaviors. This incident created the need for Melmark to provide Student with one-to-one services to keep him safe. (ME-1)
9. On May 15, 2006 Melmark and Dracut signed a Monitoring and Placement Agreement for Student. (ME-6) The Agreement sets out the services to be offered and obligations for the residential and day portions of Student’s program by Melmark and Dracut, including fiscal obligations. (ME-6)
10. Melmark has provided Student with one-to-one services since Student entered Melmark in April 2006. Melmark anticipates that in time, Student’s medications will be adjusted to effectively address his mood variability, which combined with a successful behavior program that teaches him adaptive skills, will no longer require Student to receive the one-to-one services. (ME-1)
11. Student’s Team convened again on September 28, 2006, and a new IEP was drafted. (DE-C; ME-5) The IEP reflects that methodology and delivery of instruction will be provided through one-to-one or small group instruction and his performance “will be measured through teacher observation, daily data collection, bi-weekly clinical and academic reviews and alternate assessment portfolio.” (DE-C; ME-5) As with the previous IEP, the service delivery grid in this IEP calls for all of Student’s services educational, residential, speech and language and occupational therapy services to be provided as direct services in other settings. This IEP also calls for a longer day, longer year residential placement 365 days per year with 24-hour supervision, care and instruction. ( Id. ) This plan also includes a behavior support plan.
12. According to Melmark, its proposed IEP draft for the period from November 28, 2006 through November 27, 2007 made specific references to one-to-one support offered or required by Student in the residential and day portions of his program. (ME-4) The specific references to the one-to-one staff were changed to “one-to-one or small group instruction” throughout the IEP drafted by Dracut and presented to Parents on October 4, 2006. (DE-C; ME-5) The service grid proposed by Melmark also contained a one-to-one staff for the residential portion of Student’s program for the period from September 2006 to September 2007, which was omitted from the IEP forwarded by Dracut. (Compare ME-4 and DE-C; ME-5)
13. The September 28, 2006 IEP was forwarded to Parent on October 4, 2006. On October 11, 2006 Parent rejected the IEP in part, stating that the plan failed to state that Student required a one-to-one at all times during the residential portion of the plan to address Student’s safety. (DE-C)
14. The Parties agree that Student is making good progress at Melmark through the one-to-one instruction. (See DE-A; DE-B; DE-C; ME-5) The one-to-one services have been critical in improving Student’s condition and at the time of submission of this motion, Student was starting to transition to one-to-two care. (ME-1)
15. Rita Gardner, Executive Director of Melmark New England, stated in her affidavit dated February 14, 2007, that had Melmark known that Student would require constant one-to-one care when it assessed Student, it would have either required that Dracut cover the additional expense or would not have accepted Student. (ME-1) She further stated that if Dracut failed to fund the one-to-one services, it would discharge Student as this service causes a substantial financial strain on Melmark. (ME-1)
16. On February 13, 2007, Melmark’s attorney advised Dracut’s attorney that Dracut’s Motion to Dismiss had been forwarded to Melmark, Parents and the school district but not to Melmark’s attorney. (ME-3; ME-1) Melmark’s attorney requested that a copy of the entire motion and exhibits be forwarded to Melmark’s attorney immediately. ( Id . )
III. Discussion:
As the moving party, Dracut carries the burden of proof regarding its motion to dismiss. Upon consideration of the arguments and exhibits proffered by the Parties, I find that Dracut has met its burden in proving that the issue before me in this mater is limited to funding of a one-to-one staff for Student in the residential portion of his program. The Parties dispute the meaning of the Monitoring and Placement Agreement’s service agreement as per Student’s IEP, regarding funding responsibility, and Parents’ and Melmark’s request that Dracut be held fiscally responsible for the funding of said service which Melmark never assumed would be required to service Student. As the issue relates to the contractual duties and obligations between Melmark and Dracut under the Monitoring and Placement Agreement of April 2006, it falls outside the purview of the BSEA’s jurisdiction.
603 CMR 28.08(3), the Massachusetts special education regulation addressing the jurisdiction of the BSEA states that,
In order to provide for the resolution of differences of opinion among school districts, private schools, parents, and state agencies, the Bureau of Special Education Appeals, located with the Department, shall conduct mediations and hearing to resolve such disputes. The jurisdiction of the Bureau of Special Education Appeals over state agencies, however, shall be exercised consistent with 34 CFR §300.142(a). The hearing officer may determine, in accordance with the rules, regulations and policies of the respective agencies, that services shall be provided by the Department of Social Services, the Department of Mental Retardation, The Department of Mental Health, the Department of Public Health or any other state agency or program, in addition to the IEP services to be provided by the school district…
Student’s proposed IEP states that he requires one-to-one or small group instruction leaving out any further specification. (DE-C; ME-5) This IEP in no way limits the amount of one-to-one or small group instruction that Student is to receive. The sole dispute between Dracut and Melmark is over fiscal responsibility for those services, something not within the jurisdiction of the BSEA. Hearing Officers lack contempt power and cannot enforce a contract (herein, the Monitoring and Placement Agreement) between Parties, particularly where there is no dispute among the Parties that Student is receiving a Free Appropriate Public Education in his current placement at Melmark, or that the services are in any way inappropriate. From Parents’ standpoint, their concern appears to be that services are not interrupted while the schools sort the contractual dispute, and that Student is not terminated from Melmark because of the dispute between the schools. The issue is really Melmark’s concern that it may lack sufficient staff to continue to provide the one-to-one service and that this service is too costly and was not contemplated by them when they entered into the Monitoring and Placement Agreement with Dracut.
The documentary evidence shows that Student began attending Melmark’s residential program on or about April 24, 2006. (ME-1) From the beginning, Student required one-to-one services as the medication toxicity that gave rise to his behavioral decompensation occurred while he was hospitalized at Hampstead Hospital. The Monitoring and Placement Agreement between Melmark and Dracut was signed on May 15, 2006, approximately three weeks into Student’s placement. (ME-1; ME-6) At that point, Melmark was well aware of Student’s need for constant one-to-one services, as it was already offering them. One-to-one is a type of service that Melmark offers from time to time as part of the host of services offered by the school. (ME-1) Under federal1 and state law2 addressing stay-put, Student is entitled to continue to receive the services he requires consistent with his last accepted IEP (including one-to-one services) so as to receive a Free Appropriate Public Education during the pendency of any dispute or appeal. Of note here is Melmark’s statement that Student may be weaning out of the need for one-to-one services and is starting to receive one-to-two services. (ME-1)
Lastly, Melmark raised a procedural violation in Dracut’s failure to forward the Motion and exhibits to Melmark’s attorney. Melmark’s client received the motion, the BSEA forwarded the Motion to Melmark’s attorney, and Melmark’s exhibits contained two of the three exhibits submitted by Dracut as well as additional exhibits (which contained the relevant information required to issue this ruling.) I therefore, find that Dracut’s misconduct is not outcome determinative.
The Parties are deemed to have exhausted their administrative remedies in this forum for the purpose of any appeal they wish to pursue, as the issue of determination of
fiscal responsibility pursuant to the Parties’ contractual agreement falls outside the jurisdiction of the BSEA. This matter is dismissed with prejudice as to this limited issue.
IV. Ruling:
1. Dracut’s Motion to Dismiss is hereby GRANTED.
2. Melmark’s and Parents’ Motion in Opposition to Dracut’s Motion to Dismiss is DENIED.
By the Hearing Officer,
______________________________________
Rosa I. Figueroa
Dated: February 28, 2007
COMMONWEALTH OF MASSACHUSETTS
SPECIAL EDUCAITON APPEALS
In Re: Student v. BSEA # 07-2528
Dracut Public Schools and
Melmark, Inc.
Clarification Notice
This Clarification Notice is issued at Melmark, Inc.’s request, received on March 1, 2007, seeking clarification regarding the operative IEP for Student under Stay-Put.
Melmark is to implement all of the services delineated and accepted by Parents’ in the IEP, which runs from 9/28/06 to 9/27/07. This IEP reflects Parents’ partial rejection because “the service delivery grid of the IEP fails to state that Student requires a one-to-one at all times while in residential care.”
All the Parties agree, and Student’s IEPs of September 2006 and April 2006 as amended reflect, that Student requires residential placement because in order to make effective progress his education must occur throughout the day, extended school day, and evening, 365 days per year. The delivery of instruction and methodology in both the 9/ 28/06 through 9/27/07, and 4/29/05 through 4/29/06 IEPs, included one-to-one or small group instruction. The April IEP further called for isolated individual instruction, frequent opportunities for repetition, etc., in the delivery of instruction and methodology section. Parents accepted the April 2006 IEP’s program but initially rejected the placement decision because it did not call for a residential placement. On April 26, 2006, Parents accepted the amendment to the IEP calling for residential placement at Melmark. (ME-2; DE-B; DE-A) This IEP as amended, establishes Student’s stay-put rights at Melmark. The Nonparticipation Justification portion of this accepted IEP amendment states that Student
requires a highly specialized, full day, full year program, multi-disciplinary team approach and teachers trained in the techniques of applied behavior analysis in order to make effective progress and prevent regression in the targeted areas.
Student’s schedule modification in the IEP provides that he
will participate in a 6.5 hour per day, consistent full year program, per the school’s calendar of holidays and vacations. In addition, he has a residential placement providing 24-hour supervision, care and instruction 365 days per year. This level of intensity is required at this time in order for [Student] to make effective progress and prevent regression in all targeted areas . (Emphasis added)
Parents’ partial rejection as a result of lack of specificity in the service delivery grid does not alter the fact that as a whole the IEP has been drafted to include both one-to-one and small group services as stated in the methodology/delivery of instruction section of the IEP. It is Student’s needs which dictate the type of service to be provided to him, whether one-to-one or small group. Flexibility in the wording of the IEP, allows Melmark to offer one-to-one or transition Student into small group when he tolerates and responds safely to the less restrictive type of supervision.
Nothing in the IDEA or the Massachusetts Special Education Regulations states that Student’s programs are exclusively dictated by what appears on the service delivery grid. An IEP is to be read in its totality to ascertain the services, methodology, delivery, and placement that assure eligible students a FAPE. The service delivery grid constitutes one part of the totality of what a student is entitled to under an IEP, but to assert that it is the totality of a student’s entitlement is disingenuous. An IEP is not meant to be compartamentalized and each section is not meant to stand alone. An IEP is to be used as a “road map.” The only way to arrive at the desired destination is to look at the map as a whole for guidance. Similarly, for a student’s program to be successful and for a student to achieve the goals and objectives in his IEP, the IEP must be considered in its totality. When considering the language throughout the IEP, including the language referenced above, it is the child’s needs that dictate what is required for him to access his education, receive a FAPE and make effective progress. Melmark accepted Student under this IEP and correctly determined that Student required one-to-one supervision in the residential portion of the program. Since the IEP contemplates the need for one-to-one services, so long as Student requires this service, Melmark is responsible to provide it.
By the Hearing Officer,
______________________________________
Rosa I. Figueroa
Dated: March 1, 2007
1
20 U.S.C. §1415(j).
2
603 CMR 28.08 (7).