Susan S. and The Cotting School and Falmouth Public School – BSEA #05-1581



<br /> Susan S. and The Cotting School and Falmouth Public School – BSEA #05-1581<br />

COMMONWEALTH OF MASSACHUSETTS

BUREAU OF SPECIAL EDUCATION APPEALS

In re: Susan S.1 and The Cotting School and Falmouth Public School

BSEA #05-1581

RULING ON SUSAN’S EDUCATIONAL PLACEMENT PENDING RESOLUTION OF THE DISPUTED IEP

This ruling is rendered 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 ch. 71B), the state Administrative Procedure Act (MGL ch. 30A) and the regulations promulgated under said statutes.

A hearing convened on November 4, 20042 . The parties requested that the record remain open until November 12, 2004 for receipt of closing arguments and for an affidavit from Susan, authorizing Attorney Anderson to represent her in her absence. The Cotting School (Cotting) and the Falmouth Public Schools (Falmouth) filed their briefs by 5 pm; Mother/Susan filed their brief at 10 pm3 and was therefore received by the Bureau on November 15 th , 2004. The record was therefore closed on November 15, 2004. Although requested to file by November 12 th , 2004, Mother/Susan filed Susan’s statement authorizing representation on November 15 th , 2004, and at the request of the Hearing Officer, refiled her statement as an affidavit on November 19 th , 2004. It is received as part of the administrative record.

Persons present for all or part of the hearing were:

Ann Bernard White Special Educaton Administrator, Falmouth Public Schools

Joan Stein Attorney for Falmouth Public Schools

Anne Barnes Out of District Liaison, Falmouth Public Schools

Leah Thibodeau Special Education Coordinator, Cotting School

Matthew McNamara Attorney for Cotting School

Ann McKinney Parent

Floyd Anderson Attorney for Susan

Bruce Halptman Consulting Psychiatrist for Falmouth Public Schools

Carolyn Newberger Clinical Child Psychologist, Harvard Medical School

PROCEDURAL HISTORY

On October 12, 2004, Susan filed for an expedited hearing against Falmouth, seeking an order placing her at Cotting, a Ch. 766 approved private day school in Lexington, MA, pending resolution of Falmouth’s disputed IEP. She seeks modifications to Falmouth’s proposed August 4, 2004 IEP calling for a residential educational placement. Susan alleged that Cotting was refusing to honor her placement at Cotting pending resolution of the dispute regarding the determination of her free and appropriate public education (FAPE).4 Susan’s hearing request included an Emergency Motion to Join Cotting as a necessary party to this proceeding. Cotting objected to such Motion during the October 19, 2004 telephonic conference call with Hearing Officer Putney-Yaceshyn. It asserted that it was not a necessary party to the proceedings, for Susan had no “stay-put” rights at Cotting. That is, Cotting asserted that it had properly notified Falmouth and Susan on May 25, 2004, of its termination proceedings, and that Cotting had terminated her in accordance with the private school regulation at 603 CMR 18.05(7), – well in advance of her October 12, 2004 appeal of her rejected IEP that would have created “stay-put” rights. On October 22, 2004, Hearing Officer Putney-Yatchesin granted Susan’s Motion and joined Cotting as a necessary party to this proceeding, finding a) that areas of factual disputes required a hearing to determine whether Cotting was responsible for providing Susan with a “stay-put” placement, and if so, b) that joinder was necessary to order Cotting to provide such “stay-put” placement.

On November 3, 2004, this case was reassigned to Hearing Officer Sandra Sherwood.

ISSUES

I. Whether Cotting terminated Susan as a student on August 13, 2004, in accordance with the mandates of the law. If so,

II. Whether Susan invoked her “stay-put” rights prior to such termination from Cotting. If so, whether such right entitles her to stay at Cotting, pending resolution of the underlying dispute as to a FAPE for Susan, or whether Falmouth is responsible for providing her “stay-put” placement at a different location. If Cotting terminated Susan prematurely, and/or if Cotting is her “stay-put” placement,

III. Whether Susan’s continued placement at the Cotting School is unsafe to her and/or others, such that Falmouth must create an alternative placement pending resolution of the underlying dispute as to a FAPE for Susan.

POSITION OF THE PARTIES OF THE PARTIES

Susan/Mother assert that Susan should be able to attend Cotting as a student, and that Cotting should not have terminated her prior to resolving what her educational needs are and where they can be met. Further, they assert her right to remain in her current educational placement pending her appeal of Falmouth’s August 4, 2004 IEP calling for a residential placement (“stay-put” rights). Finally, they assert that Susan’s attendance at Cotting poses no safety threats to her or to others.

Falmouth asserts that Susan should be able to attend Cotting until her appeal of its August 4, 2004 IEP is resolved. Further, it asserts that it will provide necessary modifications needed to render the setting safe for her.

Cotting asserts that it terminated Susan in accordance with the law, and that any “stay-put” rights were asserted after that termination date, and therefore, the responsibility lies with Falmouth, not Cotting. Further, Cotting asserts that it is not able to provide Susan with a safe setting, given her current medical and psychological profile.

STATEMENT OF FACT

1. Susan is a 20 year-old young woman who is diagnosed with a severe cardiac malformation and multiple associated complications. This has resulted in many hospitalizations, and in June of 2004, she underwent surgery for a pacemaker. She is also diagnosed with non-verbal learning disabilities. She is prone to anxiety and emotional arousal. (F-12) Finally, she has a psychiatric history of hospital admissions for depression and impulse/anger control issues resulting in violent outbursts. (C-7) According to her therapist, her symptoms are consistent with post-traumatic stress disorder, due to her life-threatening illnesses and traumatic medical procedures. (P-8)

2. Susan attended the Cotting School, a Ch. 766 approved private day school in Lexington, Massachusetts, beginning in September of 2000 through August 13, 2004. Her educational experience there provided her an anchor, however, this past year’s educational experience was greatly affected by her medical and emotional needs. (Mother, Thibodeau, Newberger, P-24) Significant events are as follows:

· In December of 2003, Susan was hospitalized for medical reasons twice. (P-29, P-30)

· On March 24, 2004, Susan arrived at school, having taken an overdose of pills at home, and reported to the staff what she had done, saying that she had wanted to kill herself. Although Mother felt she was “bluffing”, within an hour, after notifying Mother and consulting with the school’s psychologist, the staff called 911, and she was taken to Children’s Hospital’s emergency room. (P-3, P-32)

· Again, on April 1, 2004, Susan arrived to school and reported that she had ingested hairspray, beginning at 6:40 am and continuing during her transport to school. She told staff that she had taken the hairspray in order to get back to Children’s Hospital, for she said that was the only place she feels safe. After contacting Poison Control, observing her, and giving her fluids, Cotting called 911 and she was taken via ambulance to Children’s Hospital and then the Dartmouth Hitchcock Medical Center where she was hospitalized for two weeks for suicidal gestures. Children’s Hospital had called for such, given her two suicidal attempts in two weeks. Her primary diagnosis at that time was major depressive disorder, recurrent, severe. (P-34, C-5, C-6)

· On April 26, 2004, Mother brought Susan to the hospital for assaultive behavior after they had an argument. She stayed for five days, and was discharged to her father’s home. (P-28)

· On May 10, 2004, the nurse who was driving Susan to school filed a report with the Falmouth Police Department. He stated that when he arrived to pick Susan up, she was yelling “I wish my mother was dead”. After calming her down, he proceeded to drive her to school. However, she resumed acting out, he could not handle her, and he returned her home. An argument ensued between Susan and her mother, Susan moved to the sink, grabbed a paring knife, and tried to stab her mother. He intervened, and he and Mother disarmed her and calmed her down. He later was able to transport her to school. (C-9)

· In late May and June of 2004, she was hospitalized for medical concerns for fourteen days, and again, for three days. (P-13, P-20, P-40)

· On July 27, 2004, Susan’s transportation nurse filed an incident report, noting that Susan had refused to tell him if she had taken her medications. He called Mother who, in his opinion, reluctantly provided information, confirming that she had taken her medication; he believed that Mother felt it was not his concern. In fact, he stated, it was important for the nursing staff to have this information. (C-10)

3. Cotting requested that their psychologist have access to Susan’s therapist in order to ensure her safety while at school. On April 28, 2004, Mother and Susan provided their consent to such contact, on the condition that Mother and Susan are parties to the communication, and that “at the end of the contact, those present will agree upon what was said and with whom it may be shared”. (P-11) On May 24, 2004, Cotting also requested that upon any hospital discharge, Susan provide a statement from Susan’s psychologist or appropriate professional, assuring that Susan is medically and psychologically stable and can return to school. Such statements were provided after her June 2004 hospitalizations. (P-12, P-19, P-21, P-23) Finally, Cotting required an emergency protocol to help the staff in a medical or mental health crisis. (P-12)

4. Cotting staff decided that they could no longer address Susan’s educational needs, given her emotional condition.

· On May 28, 2004, Cotting’s Headmaster informed Parent and Falmouth that they intended to discharge Susan from Cotting, stating that she no longer meets the profile of students they serve. (P-14)

· On June 2, 2004, Cotting requested that Falmouth convene an emergency termination TEAM meeting. (P-15) Falmouth scheduled a TEAM meeting for June 18, 2004, however, due to Mother’s inability to attend any meeting that week, it was converted to a planning meeting. The summary notes state that Anne Barnes “has been working cooperatively with Susan and Mother to explore residential options”. Further, Cotting agreed to Susan’s continued stay at Cotting during the July 12, 2004 – August 13, 2004 summer session, but it would terminate her on that day. Finally, it was decided at this meeting to send a referral to the Meadowridge Behavioral Health Center (Meadowridge).

· Falmouth thereafter proposed to Susan and Mother TEAM dates of June 28 th and 30th. , 2004.

· On June 28, 2004, Falmouth’s Special Education Director wrote Mother reiterating her understanding that Mother “desires to preserve the placement and [is concerned] that Susan experiences great difficulty tolerating change”. She stated, however, that it was not in Susan’s best interest to invoke a stay put and that she could not support such a position. At Mother’s request, she agreed to postpone the TEAM meeting until July 12 th or 15th. (S-3)

· On July 12, 2004, Mother informed Cotting that she disagreed with Susan’s discharge and fully planned on her attendance in the fall. Further, she stated that a full TEAM meeting would be necessary to address any discharge plan. (P-22)

· On August 2, 2004, Susan’s therapist stated her strong opinion that Susan should continue at the Cotting School for the upcoming year. She noted that several of her teachers had been anchors for her. Her cardiologist likewise recommended continuation at Cotting, citing her need for continuity with peers, teachers, and academic interests. (P-25)

· Falmouth finally held a TEAM meeting on August 4, 2004, at which time the TEAM developed an IEP calling for a residential therapeutic setting. (S-2, S-11)

· On September 3, 2004, Susan rejected in part Falmouth’s August 4, 2004 IEP, specifically noting the “discharge components, amplification of social/emotional needs”, and the need for a back-up driving plan. (S-11)

5. Falmouth took steps to obtain a residential program for Susan, but has not yet been successful. On May 27, 2004, it submitted an application to Crotched Mountain School, stating that Mother’s initial impression of the school was positive and that she is eager to return for a formal interview. (S-1) On June 4, 2004, it notified Mother of a prospective referral to Meadowridge, and after Mother gave permission on July 2, 2004, it submitted an application. (S-2, S-3) Neither school deemed her to be appropriate for them and therefore denied her admission. (S-1, S-2) On July 29, 2004, NAPSEC responded to a referral request, listing twenty residential schools. (S-5) On August 6, 2004, Falmouth sought the Massachusetts Department of Education’s (DOE) assistance in locating an appropriate residential school for Susan. (S-6) On October 15, 2004, Falmouth requested Mother’s consent to apply to the Kennedy-Donnovan Day School and the Lighthouse School, with a group home placement, as suggested by DOE.5 As of the hearing date, the schools had not acted on any applications. (S-9)

6. Falmouth asserts that the Cotting School is Susan’s “stay-put” placement; the evidentiary record includes nothing to infer that it would not provide any modifications necessary to render the setting safe for Susan.

7. In early September, Falmouth offered Susan interim tutorial services, however, Susan had not yet accepted them. (S-9)

8. At the hearing, Dr. Halptman, (Cotting’s consulting psychiatrist), Ms. Newberger, (Susan’s therapist), Ms. Thibodeau, (Cotting’s Out-of-District Coordinator), and Mother addressed the issue of safety6 , should Susan return to Cotting. According to Dr. Halptman, the Cotting staff is not trained to interpret Susan’s behavior to know whether or not she is in danger, and to know how to respond. For instance, as Mother suggested, there may be times when she is “bluffing” in threatening suicide. Without sufficient expertise, Cotting must send her to the hospital each time; such is clearly not a desirable arrangement for Susan. Thus, for safety reasons, Susan requires a full time trained psychiatric nurse competent to converse with Susan’s outside therapist and doctors. In his opinion, that nurse must have full access to Susan’s therapist, for without this sharing of information, the nurse would be hampered in her ability to assess Susan’s condition. (Halptman) According to Ms. Newberger, Susan is safe at Cotting without such psychiatric nurse and without Susan providing consent for her to discuss the contents of their therapy sessions. First, last spring was particularly difficult for Susan, given the deaths of a family member and a friend, her parents’ separation, and her major medical crisis. She is currently more stable. Secondly, she is no longer on Zoloft – medication that research has connected to suicidality. Third, several of the Cotting staff members know Susan extremely well and are knowledgeable about and sensitive to her needs. Finally, Mother/Susan have given their consent to provide information to Cotting staff as long as Mother is party to the communication. In her opinion, a psychiatric nurse would be stigmatizing and unnecessary for Susan. (Newberger) Ms. Thibodeau, Cotting’s Out-of-District Coordinator, stated that Susan’s psychiatric needs were far beyond what Cotting’s staff could handle. Further, the staff had extreme difficulty in obtaining necessary information from Mother, rendering Susan’s return to Cotting unsafe. She had refused contact with medical providers as well as with Susan’s therapist. As such, they were unable to obtain an emergency protocol for Susan. (Thibodeau) According to Mother, the lack of consent was a result of Cotting’s desire to terminate Susan as a student. In order for Susan to return, she/Susan were in fact willing to consent to Cotting staff having access to Susan’s therapist as long as Mother is party to the communication. Further, if in an extreme emergency, they would consent to such access without Mother, if she were unavailable. (Mother)

FINDINGS AND CONCLUSIONS

I find that Cotting’s August 13, 2004 termination of Susan as a student violated Massachusetts’ regulation; it occurred prior to Falmouth’s taking responsibility for Susan’s education by locating or creating an alternate placement for Susan. Until that occurs, Cotting cannot lawfully terminate Susan unless such placement is deemed unsafe for Susan. Further, I find that Susan asserted her Massachusetts right to a “stay-put” placement prior to Cotting’s terminating her as a student. However, what is more difficult to decide, is whether Susan’s stay-put rights entitle her to stay at Cotting until FAPE is determined, or only until Falmouth locates or creates a stay-put placement comparable to Cotting’s. Finally, I find that, with modifications, Cotting is able to provide a safe setting for Susan. My reasoning follows.

I. Cotting’s Termination of Susan as a Student.

Massachusetts’ relevant Ch. 766-approved private school regulation regarding a student’s termination states:

The school shall, at the time of admission, make a commitment to the public school district … that it will try every available means to maintain the student’s placement until the local Administrator of Special Education … [has] had sufficient time to search for an alternative placement .

603 CMR 18.05(7)(b)

Massachusetts’ special education regulation relevant to private schools states:

Approval from the Department . The Department may grant approval to … private day … schools providing special education services (special education schools) in Massachusetts in order to ensure that a continuum of special education programs is available to Massachusetts students with disabilities. … Upon receipt of approval special education schools are eligible to enroll publicly funded Massachusetts eligible students. … [T]he special education school shall not terminate the enrollment of any student, even in emergency circumstances, until the enrolling public school district is informed and assumes responsibility for the student7 .

603 CMR 28.09(12)

Thus, the terms of Cotting’s license to accept publicly-funded students are that it would try every available means to maintain the student’s placement until the local Administrator of Special Education … [has] had sufficient time to search for an alternative placement, and until the public school assumes responsibility for the student.

Cotting failed to try every available means to maintain Susan’s placement at least until Falmouth has had sufficient time to search for an alternative placement and assume responsibility for Susan. Although Falmouth has actively sought a placement for Susan, it has not yet met with success. Thus, Falmouth requires more time to search, and absent a showing of insurmountable safety concerns, Susan must continue her education at Cotting until an alternative placement is located. The regulators do not define “alternative placement”, however, given the fundamental premise of federal and special education law that the public school must provide what it deems to be a FAPE, defining an “alternative placement” as anything less than a FAPE runs counter to the mandate of state and federal law.

II. Safety Concerns

Cotting is unpersuasive that it cannot provide Susan with a safe educational setting. Rather, I find that with appropriate modifications, Cotting is able to provide a safe setting. Therefore, Falmouth and Cotting shall immediately take the necessary steps to provide Susan with her educational placement at Cotting. In fact, its own witness, Dr. Halptman, opined that with certain modifications, it could be reasonably safe. (Haptman) Cotting is persuasive, however, that modifications are necessary. Specifically, Dr. Haptman recommends that a full time psychiatric nurse is necessary to ensure her safety, and that the nurse must be able to consult with Susan’s therapist. (He/she need not shadow her, but should be fully accessible to her.) Accordingly, Falmouth shall immediately provide for such. Dr. Halptman speaks with significant experience in the staffing for and education of students with emotional problems including suicidality. He is aware of the Cotting staff’s expertise. Thus, given Susan’s history of suicide attempts, Susan’s reluctance (at times) to provide information, and the currently difficult working relationship with Mother, Dr. Halptman is persuasive that the dual expertise in psychiatry and in medicine is necessary in order to interpret Susan’s behavior and to communicate with outside experts regarding such. Ms. Newberger disagrees with the need for a psychiatric nurse or for the need for open communication. (Newberger) Although Ms. Newberger possesses significant expertise and has a long history with Susan, her opinion regarding Susan’s safety at school is not sufficiently persuasive to outweigh Dr. Halptman’s opinion. First, her interest in meeting Mother’s concerns lessens her credibility as it relates to Susan’s and Cotting’s needs8 . Second, when weighed against Dr. Halptman’s opinions, when dealing with issues of suicide, reason dictates that the more conservative view be given very serious consideration. Third, the less than open sharing of information regarding Susan’s emotional status necessarily supports an uneasiness among the Cotting staff. Thus, if the Cotting staff reasonably feels that it lacks the expertise, that in itself is reason to require the additional expertise. Dr. Halptman’s opinion is credited as the opinion to follow. Mother agrees to the open communication between Cotting staff and Ms. Newberger, as long as she is party to the communication, and agrees that if she cannot be located in emergency situations, Cotting and Ms. Newberger may communicate without her presence, as long as she is informed as soon as possible as to the content of the conversation. (Mother) This, it seems, provides Cotting with the communication necessary to address its safety concerns. Whether this arrangement meets Susan’s therapeutic and educational needs is a different issue, but not a safety issue, and therefore is not addressed in this decision. It is noted, however, that although Susan and her mother may have an excellent relationship, Susan has expressed enough anger at her mother, such that one must question the soundness of Mother’s position that she should be party to all communications between the therapist and Cotting staff. It may be that if Susan requires a therapeutic educational setting, this arrangement either denies Susan her right to confidentiality vis a vis her mother, or limits the therapists’ ability to communicate confidential relevant information with the appropriate staff person.

III. Susan’s “Stay-Put” Placement

Susan invoked her Massachusetts “stay-put” rights prior to Cotting’s terminating her as a student. The relevant regulation states:

Student’s right to IEP services and placement . 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)

Thus, in Massachusetts, a student’s “stay-put” rights attach during the pendency of any dispute9 regarding placement or services. Therefore, when Mother wrote Cotting in July 12, 2004 that she planned that Susan would return to school in September, there is a dispute10 . (P-22) Falmouth was also aware of her position, as Ms. Barnes addressed this in her June 28, 2004 letter. (S-3) Clearly, Susan invoked her Massachusetts “stay-put rights” while still a student at Cotting.

Although it is clear that Susan has the right to “stay-put”, what that right means is a different question. In ensuring “stay-put” rights, the regulation makes no distinction between public school students and publicly-funded private school students. Further, publicly-funded private school students are entitled to the “full protections of state and federal special education law and regulation.” 603 CMR 28.06(2)(f) One might argue that this ends the debate – Susan has a right to stay at Cotting. However, there are several other factors to consider. First, a “stay-put” right does not necessarily ensure staying at the same location, but rather, ensures the same program and kind of placement – that, potentially, can be provided at a different location. (See federal commentary, volume 64 of the federal register at page 12616.)11 Further, one must consider the applicable Massachusetts regulations for private special education schools. They provide guidelines for terminating students, and make no reference to the student’s “stay-put” rights. Nor do they condition termination (a change in placement) on student/parental consent. Rather, they condition termination on a) the public school’s having sufficient time to search for an alternative placement and assuming responsibility for the student, or b) safety concerns. See 603 CMR 28.09(12), 603 CMR 18.05(7)(b),(d). Whether this termination standard conflicts with a student’s state and federally protected “stay-put” right is debatable. Public policy concerns are at issue – the importance of changing a student’s school placement (and location) as few times as possible, and the importance of having private schools that serve a specific population of students.

Because I have ruled that Susan has the right to continue, for now, as a student at Cotting, she in effect has “stay-put” rights there. However, if Falmouth were to offer an alternative placement, this “stay-put” issue would be more complicated. Because the parties did not address this possibility in the closing argument, I decline to render a broad opinion on this private school stay-put issue12 , but rather, look to the specifics in this case, with an eye for ensuring Susan’s continued education and for providing her with a FAPE as soon as possible. Susan has already lost several months of schooling and has therefore experienced a major change in her education, never mind her life. Falmouth must provide the psychiatric nurse, and Cotting must have access to Susan’s therapist, access as qualified by Susan/Mother’s consent. It is critically important for the Cotting staff and for Susan, however, that resolution of the FAPE issue occur as quickly as possible; neither a lengthy stay at Cotting nor moving her to a different program is in her interest unless it is deemed to be FAPE. With that in mind, the parties are hereby ordered to participate in a telephonic conference call with the Hearing Officer no later than December 1, 2004, and shall contact Paul O’Brien at the BSEA with available times. During the conference call, they shall be prepared to provide dates for a three-day hearing addressing the issue of FAPE, to be completed no later than January 31, 2005.

By the Hearing Officer,

___________________________

Sandra W. Sherwood

Date: November 22, 2004


1

Susan is a pseudonym chosen by the Hearing Officer to protect the privacy of the Student in publicly available documents.


2

The official record of this hearing consists of Parent exhibits marked as P-1 – P-60; Falmouth exhibits marked as S-1 – S-12; and Cotting exhibits marked as C-1 – C-10.


3

Given the November 12, 2004 due date, Student’s attorney risked having his closing argument kept out of the official record. His closing statement is nevertheless accepted, in the interest of resolving this pressing placement pending appeal issue and ensuring a complete ruling in this matter. Falmouth’s objection to entering Susan’s statement in to the administrative record is sustained, based on its form; it is not dated, is not a sworn statement under oath, and is not notorized. Attorney Anderson’s submission of page three of P-1 is accepted in to evidence, despite its late filing, given that it includes no surprise information and is not objected to.


4

She refers to a 2002 settlement agreement endorsed by Judge Saris of the U.S. District Court of Massachusetts. This settlement agreement, however, cannot be the basis of any asserted “stay-put” rights as against Cotting, for Cotting was not a party to this settlement agreement or court order.


5

In this same letter, Falmouth informed Mother that it was continuing its search to locate a nurse to accompany Susan while traveling to and from the Cotting School. (S-9)


6

The witnesses at times made statements regarding her therapeutic needs in order to receive FAPE. Although important statements, they are not relevant for purposes of addressing the safety issue.


7

The language continues, addressing emergency situations. However, given that the safety issue is currently being addressed, this language is not relevant. It states: At the request of the public school district, the special education school shall delay termination of the student for up to two calendar weeks to allow the public school district the opportunity to convene an emergency Team meeting or to conduct other appropriate planning discussions prior to the student’s termination from the special education school program. With the mutual agreement of the approved special education school and the public school district, termination of enrollment may be delayed for longer than two calendar weeks


8

It was puzzling, given Susan’s strong desire to return to Cotting, that Ms. Newberger could not have met Cotting’s request for open communication as a condition for Susan’s return. Certainly, a student’s need for a “safe oasis” may be necessary, and sharing information without her consent may not be an option. However, it was unclear why Susan’s “safe oasis” would be compromised if she were to communicate with Cotting staff – particularly Cotting staff who Susan trusted. Nor, given Susan’s trust in her, was she persuasive that she could not have worked with Susan to achieve her consent to this open communication.


9

Contrary to Massachusetts law, the federally protected “stay-put” placement applies not just when there is a dispute, but only when that dispute rises to the level of an administrative or judicial proceeding. However, given the finding that Cotting prematurely terminated Susan as a student, even under the federal standard, she invoked her “stay-put” rights prior to termination.


10

The May 19, 2004 discharge statement indicates that Susan and Mother believed she needed to be in a residential rather than day setting, however, this is significantly prior to the July 12, 2004 statement. (P-57, P-22)


11

Federal law refers to the right to stay in the then current placement. 34 CFR 300.514(a) Massachusetts law refers to the right to the then current education program and placement. 603 CMR 28.08(7) It would seem that if the federal law allows for the provision of the placement at a different location, then the Massachusetts law would allow for the provision of the program and placement at a different location.


12

In an indepth and thoughfully written decision, Hearing Officer Lindsay Byrne addressed this issue, enforcing the “stay-put” placement against the private school. As in this case, there was no showing of an existing comparable alternative placement. See Lolani vs. Northampton Public Schools BSEA #04-0359 (2003).


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