Tyrell and Duxbury Public Schools – BSEA # 09-0295



<br /> Tyrell and Duxbury Public Schools – BSEA # 09-0295<br />

MASSACHUSETTS DEPARTMENT OF ELEMENTARY AND SECONDARY EDUCATION

Bureau of Special Education Appeals

In Re: Tyrell1 and Duxbury Public Schools

BSEA #09-0295

RULING ON SCHOOL’S MOTION FOR A DIRECTED VERDICT AND/OR MOTION TO DISMISS

This matter comes before the Hearing Officer on the Motion of the Duxbury Public Schools to Dismiss the special education appeal filed by the Parents, and the Parents’ Opposition thereto. Both parties submitted written briefs in support of their respective positions. Oral arguments were heard on January 8, 2009. After careful consideration of the pertinent facts and the relevant statutory and jurisprudential principles, I find that the School’s Motion to Dismiss should be denied, largely for the reasons set out in the Parents’ Supplemental Memorandum in Opposition to Dismissal. A brief explanation is warranted:

The Parents requested a due process hearing on July 9, 2008, asserting that the IEP proposed by Duxbury for a substantially separate day educational program was inappropriate for Tyrell and requesting a residential educational placement. Thereafter Duxbury agreed and developed an IEP calling for a residential educational placement at the Evergreen School. The parents accepted residential educational services but rejected the proposed placement asking instead the Duxbury place Tyrell at the Perkins School. A Hearing on the placement issue was held on September 23 and October 15, 2008. The Decision issued on December 2, 2008, found that neither party had produced convincing evidence that Tyrell’s complex educational needs could be immediately met in its proposed placement. The Hearing Officer then ordered a publicly funded student and program evaluation and held the Hearing record open to receive this further evidence. See: Tyrell and the Duxbury Public Schools , BSEA #09-0295, 12/2/08 (Byrne); 14 MSER 398 (2008).2

In its Motion for a Directed Verdict/Dismissal, Duxbury takes the position that unless a parent demonstrates by the conclusion of its case-in-chief at hearing that the School’s proposed IEP placement is patently inappropriate, the School “wins” by default. Duxbury relies on the Supreme Court’s opinion in Schaffer v. Weast , 525 U.S. 983 (2005) to support its argument. I do not think that the Supreme Court intended first level due process decision makers to adopt such a mechanistic view of the allocation of “burden of proof”. Instead the Supreme Court offered a time honored analytical tool to assist decision makers assessing the merits of complex, competing factual claims that might otherwise remain in equipoise. In a special education appeal with finely balanced facts, the Court instructs the Hearing Officer to use a featherweight to tip the scales to reach a decision, not a sledgehammer to jam the facts into one category or another.3

Here, the School’s reliance on a burden of persuasion argument to support its request for dismissal of the Parents’ claims is misplaced. The argument glosses over the fact that the Decision issued on December 2, 2008 was an interim one and that this matter is ongoing. The hearing record has been left open to receive additional evidence identified by the Hearing Officer as critical to both parties . The School is therefore challenging an interlocutory ruling without any showing of exigent circumstances or likelihood of success at conclusion. The School’s arguments are more appropriately addressed, if necessary, to a reviewing court after a final BSEA decision is rendered.

Second, by advocating dismissal of this matter on procedural grounds, the School ignores the fundamental duty of the Hearing Officer – to determine the appropriate special education program for a Student with a disability when a dispute exists. There is no “default” setting under the IDEA or Massachusetts special education law. A Hearing Officer may not endorse an inappropriate setting merely because there is insufficient evidence of an appropriate one. In this matter neither party presented evidence sufficiently persuasive to the Hearing Officer that an appropriate program was immediately available for this Student. In order to meet the Hearing Officer’s primary responsibility to determine and ensure the provision of a free, appropriate public education to an eligible Student, the Hearing Officer has the power to order “additional evaluations…….at public expense” and the obligation to do so “when necessary to determine the appropriate special education for the Student” 34 CFR 300.502 (a) 603 CMR 28.08 (5) (c); BSEA Rule X.

Having found previously that no determination could be made without additional substantive evidence on the presenting question of whether Duxbury has met its statutory obligation to provide FAPE to Tyrell,, the hearing record remains open for receipt of the necessary evaluation information. The School’s Motion for a Directed Verdict/Dismissal is DENIED . The parties shall submit a written status report to the Hearing Officer no later than February 5, 2009. The status report shall include, at a minimum:

a.) a description of the current educational status and placement of the Student;

b.) a description of the current positional of the parties with respect to the proposed educational placement of the Student;

c.) the name, contact information and qualifications of the agreed upon evaluator and a proposed evaluation schedule; or,

d.) a list of at least three potential program evaluators along with their contact information and qualifications. The Hearing Officer will select the individual or facility to conduct the publicly funded evaluation from this list.

By the Hearing Officer

________________________

Dated: January 29, 2009


1

“ Tyrell” is a pseudonym chosen by the Hearing Officer to protect the privacy of the Student in documents
to the public.


2

See Also: administrative record in BSEA #09-0295


3

See eg, discussions at Shrewsbury Public Schools , BSEA #08-2466, 3/12/08 (Crane)

14 MSER 68 (2008); Sutton Public Schools , BSEA #05-3840, 3/28/07 (Berman);

13 MSER 95 (2007)


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