Student v. Lincoln Public Schools District and Lincoln Sudbury Public Schools District – BSEA #03-0357



<br /> Student v. Lincoln Public Schools District and Lincoln Sudbury Public Schools District – BSEA #03-0357<br />

COMMONWEALTH OF MASSACHUSETTS

SPECIAL EDUCATION APPEALS

In Re: Student v. Lincoln Public Schools District and Lincoln Sudbury Public Schools District

BSEA # 03-0357

RULING ON THE PARENTS’ MOTION FOR INTERIM ORDER FOR PLACEMENT OF THE STUDENT AND THE SCHOOL DISTRICTS’ OPPOSITION TO SAID MOTION AND TO CONVENE THE HEARING DURING THE WEEK OF AUGUST 19, 2002

A Hearing on the Parents’ Motion for Interim Order for Placement of the Student at the Riverview School, and Lincoln Public Schools District’s (hereinafter, “Lincoln”) and Lincoln Sudbury Public Schools District’s (hereinafter, “Lincoln Sudbury”) Opposition to said Order and to Convening the Hearing on the week of the 19 th of August, was held on August 19, 2002, at the BSEA, 350 Main St., Malden, MA, before Rosa I. Figueroa, Hearing Officer.

This Ruling is issued pursuant to 20 U.S.C. 1401 et seq. (the “IDEA”), 29 U.S.C.794, M.G.L. chs. 30A, 71B, and the Regulations promulgated under those statutes.

Those present for all or part of the Motion Session were:

Student’s Mother

Student’s Father

Student’s Step Mother

Heather Gold, Esq. Attorney for the Parents/Student

Sarah Ward Speech and Language Pathologist, Consultant to the Parents/Student

David Gotthelf Director of Student Services, Lincoln Sudbury Public Schools District

Teresa Watts Administrator of Student Services, Lincoln Public Schools

Sandra Moody, Esq. Attorney for the Lincoln School District and the Lincoln Sudbury District Schools

Parents’ Exhibits A and 6 through 8, School Exhibits A and B and 1 through 7, and Parents’ Exhibits 1 through 5 filed jointly by the parties were admitted in evidence, as well as seven hours of recorded testimony, and were considered for the purpose of rendering this Ruling.

PROCEDURAL BACKGROUND:

A Hearing in the above referenced matter was requested by the Parents against Lincoln on July 18, 2002. The BSEA Hearing notice was issued on July 22 nd and the matter set for an automatic hearing date on August 7, 2002. On July 25, 2002 Lincoln requested a postponement of the Hearing based on unavailability of Counsel. At the request of the parties, a conference call was held on July 30, 2002. During the conference call, Counsel for Lincoln explained that there was a possibility of a conflict of interest as she represented both Lincoln and Lincoln Sudbury and since the Student was transitioning from one to the other (going from 8 th grade to the high school) she needed to find out if she could represent one, both or neither school district. She also stated that lightening had struck the School the previous week, the power was out and she had been unable to reach her client. Additionally, she had a previously planned vacation (August 5 th through the 9 th ) and would not be available on the automatic Hearing date. Since it was the Summer and the school personnel was on vacation, she was uncertain that her witnesses would be available to testify. I suggested that the Parents filed a Request to join Lincoln Sudbury as a necessary party and gave them August 2, 2002 as the deadline for submitting the request. Counsel for Lincoln and Lincoln Sudbury stated that her clients would not oppose the Motion. During the telephone conference call the parties were advised that the postponement request would be granted and that a Hearing on the merits could be held during the week of the 19 th or the 26 th of August 2002. Given the Parents’ need for a response the parties were advised that an Order on placement could be issued pending a full decision on the merits by the first week of September 2002.

The Parents filed their request to have Lincoln Sudbury joined as a necessary party on August 2, 2002 and requested to proceed to Hearing the week of the 19 th except they were unavailable on August 23 rd . An Order granting said request was issued on August 5, 2002.

Also, on August 2, 2002, the Parents filed the Motion for Interim Order for Placement of the Student at the Riverview School, addressed via this Ruling. On August 6, 2002, the BSEA received Lincoln and Lincoln Sudbury’s joint Opposition to the Parents’ Motion for Interim Order and to begin the Hearing during the week of the 19 th . The Schools requested that I afford them the opportunity to be heard, and to present evidence, and that no aspect of this matter be addressed by the BSEA before the week of August 19. On August 6 th , the BSEA also received the Parents’ request to be heard on the Motion. The BSEA issued an Order on August 7, 2002 setting the Motion Session for August 19, 2002 and orally informed the Parties that a Ruling would be issued within a couple of days and that the Hearing on the Merits could be convened during the last week of August 2002.

On August 16, 2002, the Parents filed an Amended Motion for Interim Order and additional documents.

By agreement of the Lincoln and Lincoln Sudbury, Attorney Moody represented both clients at the Motion Session.

POSITION OF THE PARTIES:

Parents’ Position:

On August 2, 2002, the Parents moved that the Student be placed at the Riverview School (hereinafter, “Riverview”) by August 8, 2002. They asserted that they had rejected the IEP promulgated by Lincoln calling for placement at the Lincoln Sudbury High School for the 2002-2003 school year because the program would fail to meet the Student’s needs. The Parents rely on the report of their Speech and Language consultant, Ms. Ward, who recommends residential placement for the Student. The Student has been accepted at Riverview and a spot for her is only being held until August 8 th . The Parents requested that the Hearing begin on the automatic date, August 7 th , and that additional days be scheduled shortly thereafter. Failure to issue the Interim Order could result in the Student loosing the opening at Riverview.

If an opening does not materialize before the first day of school at Riverview, then the Parents seek an order for out of district placement until an opening is made available at Riverview.

Schools’ Position:

Lincoln’s and Lincoln Sudbury’s basis to oppose the Parent’s Motion is two fold: First, they assert that a Request for an Interim Order cannot be used to cure self-induced delays in seeking a hearing on the merits; and second, an Interim Order must be viewed as a Request for Emergency Relief.

The Parents’ delay in filing the request for hearing results in the detriment of the School Districts. They should not be permitted to use their delay to support their claim for an interim order.

There is a long relationship between the Parents and the Lincoln Public Schools concerning the appropriate placement for the Student. In November 2001 the Parents informed the School Districts that the Student had been accepted at Riverview and stated their preference for a residential placement there. Since January 2002, Lincoln and Lincoln-Sudbury have maintained that the public school program is the least restrictive environment in which she can receive a free and appropriate public education. At Team Meetings in January 2002 and March 2002 the School Districts proposed continued placement in the Lincoln Public Schools for the remainder of the 2002-2003 school year (and the summer of 2002), with placement at the REACH program at Lincoln-Sudbury beginning in September 2002 for the 2002-2003 school year.

The Parents arranged to have their independent evaluator observe both the REACH program and the Riverview School, which she did. Her report of those observations and the recommendations of the evaluator were not available until July 5, 2002. Thereafter, the report was received by Lincoln-Sudbury. Although the relevant regulation does not require reconvening of the Team until ten school days after the receipt of such reports, see 603 CMR 28.04(5)(f), which would be on or before September 18, 2002, the Director of Special Education for Lincoln-Sudbury called the Student’s Father and arranged to meet with him on July 24, 2002. At that time he was unaware that a Hearing Request had been filed on July 18 th because Lincoln Sudbury had not been named as a party to the proceedings. The Father asserted his preference for a placement at Riverview but Lincoln Sudbury maintained that their meeting could not be considered a Team Meeting, as it did not meet the regulatory requirement for such a meeting and therefore, only options at Lincoln Sudbury could be discussed.

The Parents knew for six months that the proposed placement was in the school district. They filed a Hearing Request in mid July and now seek an Interim Order by August 8 th without affording the Schools an opportunity to be heard, citing as the reason for such emergency relief the fact that any delay may jeopardize the placement at Riverview. Moreover, the original Request for Hearing filed was incomplete, as it did not name as a party respondent the appropriate district, thereby further jeopardizing the ability of the appropriate school district to respond to the request.

The Parents’ request for issuance of an Interim Order without a hearing, based solely on the evidence presented by them, is an extraordinary request that can only be viewed as analogous to a request for an expedited hearing and placement decision. The facts in this case, however, do not meet the standard for expedited relief as set out in BSEA Hearing rule 2B. There is no contention that this is a discipline matter, or any evidence that the Student’s health and safety would be endangered by delay. There is also no evidence that the services proposed by Lincoln-Sudbury are so inadequate that harm to the Student is likely, nor is she without an educational program. There is simply the belief by the Parents that the residential option is preferable.

The facts in this case exemplify the need for a full hearing on the merits and the need for the Hearing Officer to have an opportunity to view and hear all of the evidence before issuing a decision. Any “emergency” if there is such, was caused by the Parents delay in requesting the hearing.

The School Districts request denial of the Parents’ Motion for an Interim Order and asked that the Hearing be scheduled during the week of September 9, 2002. This would allow Lincoln-Sudbury to reconvene the Team to consider the final report, observations, and recommendation of the Parents’ consultant, dated July 5, 2002 (although they technically have until September 18, 2002 to convene the Team), enabling the Hearing Officer to have a complete record for consideration.

RULING:

Upon consideration of the Arguments proffered by the Parties, the documentary and testimonial evidence and the State and Federal laws and regulations governing Special Education Appeals, I hereby DENY the Parents Motion for Interim Placement of the Student at Riverview.

The Parents requested that the Hearing begin on the automatic date, August 7 th , and that additional days be scheduled shortly thereafter to avoid losing the spot which was being held open for the Student until August 8 th . This was unrealistic and impossible unless the entire hearing had been completed in one day, August 7 th , so that an Order could have been issued by August 8 th . In their request, the Parents themselves realized that putting their case alone would take more than one day in effect preventing the issuance of any order or decision before the August 8 th deadline. The Parents also had to consider that the Schools would require at minimum one additional day to defend their position. It is unfortunate that the Parents’ consultant for good reason was unable to complete her report before mid July 2002, creating a chain of events that caused the Student to lose the spot that was been held for her at Riverview assuming that she had prevailed on her claim.

Lincoln and Lincoln Sudbury argue that the Parents knew for six months that the proposed placement for the Student for the 2002-2003 school year was in the school district. The Parents filed a Hearing Request in mid July and sought issuance of an Interim Order by August 8 th without affording the Schools an opportunity to be heard. They cited as reason for such emergency relief the fact that any delay could jeopardize the Student’s placement at Riverview. Moreover, the original Request for Hearing filed was incomplete, as it did not name as a party respondent the appropriate districts. It was not until the telephone conference call of Tuesday July 30 th that the Parents were advised by Lincoln/Lincon Sudbury’s counsel that Lincoln Sudbury was the District responsible to implement the Student’s IEP, not Lincoln. The Parent’s request for joinder, unopposed by the school districts, was received on Friday August 2 nd and the Order granting joinder was issued on Monday August 5, 2002. To compound matters even more, the lack of power caused by lightening to the School delayed communication between Counsel and the school, and Counsel communicated the possibility of a conflict of interest (she represented both school districts) and it was unclear to her whether or not she and her firm would be disqualified to represent one or both school districts. Finally, Counsel for the School Districts was unavailable between August 5 th and 9 th . This in effect delayed the ability of Lincoln Sudbury, the appropriate school district, to prepare for hearing by August 7 th , the Automatic date.

The school districts’ further argue that issuance of an Interim Order without a hearing, based solely on information presented by the Parents, is analogous to a request for an expedited hearing and placement decision. I agree that the facts in this case do not meet the standard for expedited relief as set out in BSEA Hearing rule 2B. This case does not involve a discipline matter, there is insufficient evidence to show that the Student’s health and safety would be endangered by delay, that the services proposed by Lincoln-Sudbury are so inadequate that harm to the Student is likely, or that she is without an educational program. Therefore, this case does not meet the criteria for an expedited hearing. The Parents, however, did not request an expedited hearing. They simply requested a Hearing and indeed, they are entitled as a matter of law to a hearing and decision 45 days after receipt of a request for Hearing. 34 CFR 300.511(a); See also 603 CMR 28.08:5. Postponements however, may be granted by a Hearing Officer under Rule 3 of the Hearing Rules for Special Education Appeals. In light of all of the circumstances surrounding this case, the postponement requested by the School District was warranted and reasonable.

Furthermore, while I can understand the Parents, concerns for their daughter, their request for Interim Order placing the child at Riverview would have the effect of circumventing State and Federal Law regarding Stay Put. “The Stay Put provisions of the IDEA, provide that:

During the pendency of any proceeding conducted pursuant to section 1415, unless the State or local educational agency and the parents or guardians otherwise agree, the child shall remain in the then current educational placement of such child… 20 U.S.C. s. 1415(j)

603 CMR 28.08 (7) establishes the school district’s obligations during the pendency of an appeal in Massachusetts. This Regulation states that:

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.

A temporary change in placement may be ordered by a hearing officer in certain situations consistent with federal law where for example maintaining the placement of the student would result in substantial likelihood of injury to the student or others. 603 CMR 28.08 (7) (c)

Both the IDEA and the Massachusetts 766 Regulations cited above establish a Student’s right to remain in the current educational program and placement during the pendency of an administrative proceeding. This procedural safeguard is unequivocal and is intended to reduce the disruption of educational services to a student when a new placement is being challenged. Burlington School Committee vs. Massachusetts Department of Education , 471 U.S. 359, 368 (1985).” Erick D. v. Wachusett Public Schools District , BSEA # 02-0865, August 31, 2001

Since the Student in the case at bar does not meet the criteria embodied in 603 CMR 28.08 (7) (c), her Stay Put is in Lincoln Sudbury. Whether or not placement at Riverview is appropriate and able to provide the Student with a Free Appropriate Public Education in the least restrictive setting is indeed the issue upon which this case is predicated. This matter will continue to Hearing in September so that the Parties may complete presenting their case. Until then, the Student’s Placement will be in Lincoln Sudbury and the services will be provided as per the last agreed upon IEP unless the Student’s Pediatrician recommends Home/ Hospital Instruction.

Lincoln Sudbury is ordered to convene the Student’s Team by the 10 th of September 2002 to discuss the evaluation and recommendations made by Ms. Ward, and to promulgate a new IEP for the Student’s 2002-2003 by September 12, 2002. This matter will continue to a full Hearing on the merits on September 18, 19 and 20, 2002.

The factual information provided through the seven hours of testimony recorded thus far will be detailed in the final decision at the completion of the full Hearing. The Parties do not need to re-call any of the witnesses heard on August 19, 2002, as their testimony and the documents admitted in evidence will be considered in rendering the final decision.

So Ordered by the Hearing Officer,

_______________________________________

Rosa I. Figueroa

Dated: August 20, 2002


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