COMMONWEALTH OF MASSACHUSETTS
DIVISION OF ADMINISTRATIVE LAW APPEALS
BUREAU OF SPECIAL EDUCATION APPEALS
In Re: Taunton Public Schools and Rahul1
BSEA #12-0399
RULING
This matter comes before the Hearing Officer at the request of the Taunton Public Schools for an interim ruling designating the Student’s “stay put” placement while the parties prepare for hearing on other outstanding substantive issues. A prehearing conference was held on October 18, 2011 at which the issues in dispute were clarified and evaluations, information exchanges and other procedural matters were discussed. The parties agreed to resolution of the outstanding “stay put” issued based on the documents already submitted as part of the hearing request and response as well as the arguments set out at the prehearing conference. The issues remaining for Decision after a hearing are:
1)
a. Whether the 2011-2012 IEP developed by Taunton in May 2011, calling for Rahul’s full day placement in a substantially separate classroom at Taunton High School is reasonably calculated to provide a free, appropriate public education to Rahul? or
b. Whether Rahul requires one to one instruction by a BCBA in a split school/home placement in order to receive a free appropriate public education?
2) Whether the 2011-2012 IEP developed by Taunton in September 2011, calling for Rahul’s placement in a full year, 24 hour per day special educational school is reasonably calculated to provide him with a free, appropriate public education?
LEGAL FRAMEWORK
Federal and state special education laws outline a variety of “procedural protections” designed to ensure that the actual special education services for a student with disabilities are not disrupted in the event a dispute arises between the student’s parents and the responsible school district. Among these procedural protections is the guarantee that a student will continue to receive the special education services in the setting that the parents and school district had most recently agreed were appropriate for the student while the parties resolve any disagreement. This concept is familiarly referred to as “stay put”. Under federal law once a parent initiates a due process procedure, the student’s “stay put” rights attach.2 Massachusetts extends “stay put” protections to eligible students whenever parents and responsible school districts disagree even apart from formal due process proceedings under the IDEA and M.G.L.c.71B.3 Parental rejection of any proposal to initiate, continue or withdraw a special education service or setting is an indication of a parent’s “disagreement” sufficient to trigger “stay put”. In Re: Uxbridge Public Schools , 16 MSER 334 (2010)
SUMMARY OF THE FACTS
1. Rahul is a 16 year old who has received special education through the Taunton Public Schools for at least five years. Rahul has been diagnosed with Autism, Tuberous Sclerosis, a Seizure Disorder and Pica. He is non-verbal. He understands “a few hand signs” but does not communicate independently. Overall Rahul functions at the 1-2 year developmental level. Rahul requires direct assistance, instruction and care in all aspects of life and learning. Rahul learns best through an intensive ABA approach that uses DTT (Discrete Trial Training), NT (Naturalistic Teaching) and AVB (Applied Verbal Behavior). (S-1; S-2)
2. The last accepted IEP for Rahul covered the period December 2009 through December 2010. The IEP provided for 35 hours per week of 1:1 ABA instruction over the course of 52 weeks per year. On school days Rahul received 4 hours per day of instruction in a 1:1 setting within the Friedman Middle School and 3 hours per day at home or in the community with the same direct ABA provider. (S-2; S-5)
3. After several Team meetings during the winter and spring of 2011 Taunton developed an IEP for Rahul’s first year in Taunton High School. The proposed IEP, covering the period April 2011 through April 2012, called for continuing 35 hours of direct, 1:1 ABA services to Rahul, but changing the setting for delivery of those services to 6 hours per day in a substantially separate classroom in Taunton High School and 1 hour per day at home. (S-1) The Parents rejected the proposed IEP on June 25, 2011. The placement page of that IEP indicated that Rahul’s placement would be in a substantially separate class. The Parents indicated their consent to that placement directly on the placement page on June 25, 2011. (S-1)
4. In an electronic message (email) to Taunton’s Special Education Director Sheilah Reardon dated June 29, 2011 the Parents wrote:
We agree to placing [Rahul] at Taunton High School in the fall, as we also believe [Rahul] should attend school in his own community, but disagree with Taunton’s decision to decrease in-home educational services or to place him in the special education classroom that we cannot evaluate because it doesn’t exist yet.
We are invoking our “stay put” rights to continue with the current IEP and services…
(S-1; P-1)
The mother explained that she meant to be very clear that she was consenting to change the in-school service delivery site from the Friedman Middle School to the Taunton High School to accommodate Rahul’s age progression. She did not intend, however, to accept his placement in a special education classroom with other students, or to alter the timing and schedule of his 1:1 ABA services. She continued to reject all proposed changes to the type, frequency, setting and schedule of the 1:1 ABA services Rahul had received under the accepted 2009- 2010 IEP. (Parent)
5. The Parents and the School met during the summer, 2011 to develop a plan to transition Rahul to Taunton High School. They developed a plan that gradually increased Rahul’s time in the High School from 1 hour to 5 hours 45 minutes. The plan did not address actual classroom placement. (S-4; see also S-3) The plan was partially implemented as part of Rahul’s extended year special education program until the regular school year began in September, 2011. The parent was not satisfied with the space available for instructional services in the High School. Rahul’s attendance since the beginning of the 2011-2012 school year has been inconsistent.
6. The Parents revoked their consent to the transition plan on September 6, 2011. (P-4)
7. The Team reconvened on September 13, 2011. Taunton proposed an IEP calling for Rahul’s placement in a full year, 24 hour per day specialized education program. Taunton also requested the Parents’ consent to send “referral packets” to 6 potentially appropriate residential schools. The Parents have rejected the most recently proposed IEP and have refused consent to release referrals to residential programs. (S-5; Parents)
DISCUSSION
After careful consideration of the undisputed facts and the arguments of the parties I find that the last accepted 2009-2010 IEP, and the actual service delivery and schedule Rahul received in accordance with that IEP, is the “stay put” program Taunton must ensure Rahul receives pending resolution of the remaining disputed issues.
Federal and state “stay put” provisions guarantee that while the parties are working to resolve differences of opinion about changes to a student’s special education program the student will continue receiving educational services that the parents and school district had most recently agreed were appropriate. Rahul’s last accepted IEP provided for 35 hours of 1:1 ABA therapy per week. There is no dispute that delivery of those service hours was split between 4 hours of 1:1 instruction per day in a private setting in the middle school building and 3 hours of 1:1 instruction per day in a home-based program.
Typically the “stay put” inquiry would end there. Taunton argues, however, that the Parent’s consent to the substantially separate classroom setting indicated on the placement page of the 2011-2012 IEP proposed by Taunton in May 2011 changed the “stay put” placement. Taunton maintains that the IEP’s placement page, (and presumably the consent or rejection indicated thereon) governs the “stay put” determination regardless of any subsequent communications between the parties. This argument elevates form over substance and fails to recognize the fluidity and flexibility of the IEP process. First, it is noteworthy that the proposed substantially separate classroom did not exist either at the time the Parents signed the proposed IEP’s placement page on June 25th or at the time of the clarification of the parameters of their rejection of the classroom placement on June 29th. Rahul never received services in a substantially separate classroom with other students. A “return” to 1:1 services in a private setting does not represent any actual change or disruption in service provision to Rahul; placement in a classroom with other students would. Second, neither state nor federal regulations require parental consent, or indeed any parental response, to be recorded on a particular form. It is sufficient that the Parents’ response be in writing (or alternate method capable of preservation and authentication) and sufficiently clear to establish the Parents’ intent. In this matter the Parents’ June 29th email met both those requirements. The proposed IEP was signed on June 25th. (S-1) On June 29th the Parents clarified their intent to accept only the transfer of services from the middle school building to the High School building. They explicitly notified the school that they did not accept a proposed change in the service delivery split schedule and did not accept the proposed special education classroom. (¶ 4 supra ) The language of June 29th email clearly and unequivocally supplements and clarifies the Parents’ June 25th response on the proposed IEP placement page. That June 29th email is a parental rejection of proposed changes to Rahul’s then current special education program. It therefore negated and superceded any earlier broader interpretation of the Parents’ partial acceptance and triggered the Student’s “stay put” protections. Taunton was then obligated to continue the number, type and schedule of service hours as set out in the last accepted 2009-2010 IEP. Contrary to Taunton’s assertion, the transition plans developed by the parties over the summer 2011 did not alter Rahul’s “stay put” placement. Substantively the plans did not address the location of in-school 1:1 services. (S-4; S-3) Procedurally the plans were designed to be temporary “bridge” transportation and acclimatization services, more analoguous to an extended evaluation than a comprehensive special education placement, and therefore not relevant to a “stay put” determination. Thus at this juncture, the only document governing “stay put” services is the 2009-2010 IEP, as it is the “last accepted”, unrejected, special education program on record.
ORDER
The program and placement set out in the 2009-2010 accepted IEP is Rahul’s “stay put” placement pursuant to 20 U.S.C.§1415(j) and 603 CMR 28.08(7). The Parents’ consent to delivery of the school based portion of those services in the High School building instead of the Middle School building does not change Rahul’s accepted IEP and therefore “stay put” “placement” in a 1:1 classroom setting.
By the Hearing Officer
__________________________
Dated: October 26, 2011
1
“Rahul” is a pseudonym chosen by the Hearing Officer to protect the privacy of the Student in documents available to the public.
2
The federal stay put protections are set out at 20 U.S.C.§1415(j):
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 the child.
and at 34 CFR §300.518
unless the State and local agency and the parents of the child
agree otherwise, the child involved in the complaint must
remain in his or her current education placement.
3
603 CMR 28.08(7) provides:
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.
(emphasis added)