COMMONWEALTH OF MASSACHUSETTS
SPECIAL EDUCATION APPEALS
In Re: Dracut Public Schools
BSEA # 01-4555
DECISION
This decision is issued pursuant to 20 USC 1400 et seq . (Individuals with Disabilities Education Act), 29 USC 794 (Section 504 of the Rehabilitation Act), MGL chs. 30A (state administrative procedure act) and 71B (state special education law), and the regulations promulgated under said statutes.
A hearing was held on June 21, 2001 in Malden, MA before William Crane, Hearing Officer. Those present for all or part of the proceedings were:
Student’s Mother
Mary Ellen Sowyrda Attorney for Dracut Public Schools
Suzanne Cloutier Administrator of Special Education, Dracut Public Schools
Kristen Denty Program Manager, Merrimack Middle School
Mary Clisbee Senior Associate Director, Merrimack Special
Education Collaborative
The official record of the hearing consists of documents submitted by Student’s mother (hereafter Parent) and marked as exhibits 1 through 10 (hereafter, Exhibit P-1, etc.); documents submitted by the Dracut Public Schools (hereafter, Dracut) and marked as exhibits 1 through 18 (hereafter, Exhibit S-1, etc.); and approximately 5 hours of recorded oral testimony and argument, including oral closing arguments.
ISSUE PRESENTED
Does the program proposed by Dracut (the Merrimack School Summer Program) satisfy Dracut’s obligation to provide summer services for Student? If not, is Student entitled to receive a summer program at the Adventure Lore Camp or other similar camp?
POSITIONS OF THE PARTIES
A. Parent’s Position .
After researching many camps, Parent believes that the Adventure Lore Camp can best meet her son’s needs. Although Dracut has offered a summer program at the Merrimack School, its program is academically-based, Student does not need academic support during the summer, and therefore this proposed summer program does not meet Student’s needs.
B. Dracut’s Position .
Dracut agrees with Parent that Student needs a summer program in order to prevent social/emotional regression. Dracut, however, takes the position that the Merrimack Summer School Program, which it has offered to Student, would meet these needs because it provides a daily, structured routine (which Student requires in order to avoid regression) and because it is focused primarily on addressing social, emotional and behavioral issues.
PROFILE AND HISTORY
Student is fourteen years old (date of birth 9/29/86), recently graduated from 8 th grade with honors and lives with his mother in Dracut, MA. Student is intelligent, athletic and artistic; he has strong leadership qualities; and he is motivated to learn when encouraged to do so. Testimony of Mother, Denty; Exhibits S-2, S-7, S-8, S-10.
Student has, at times, become oppositional towards staff when frustrated, and he sometimes has difficulty with peer interactions. He needs an environment which addresses his feelings of occasional anger and low self-esteem. He responds well to structured activities, clear, consistent limit setting and well-established classroom rules. Testimony of Mother, Denty; Exhibits S-7, S-10.
Since March 2000, Student has attended the Merrimack School, which is operated by the Merrimack Special Education Collaborative. This placement is intended to address his social, emotional and behavioral challenges. Student’s IEP for the period 5/00 to 5/01 provides for Student to receive all of his services at the Merrimack School, including English, math, science, social studies, health, outdoor education, academic support (3 hours per week) and social, emotional support (3 hours per week). Parent accepted this IEP. Testimony of Mother, Exhibit S-10.
An amendment to the above IEP covers the remainder of Student’s placement at the Merrimack School (the amendment is for the period 4/9/01 to 6/25/01). The amendment also reflects the need for Student to participate in a summer program to prevent social regression, and address social, emotional and behavior issues. Mother has neither accepted nor rejected this IEP because of her disagreement with Dracut regarding summer placement. Testimony of Mother, Exhibit S-1.
An IEP for the next academic year (9 th grade), covering the period 8/28/01 to 6/30/02, places Student at the Greater Lowell Technical High School. The services provided for in this IEP are inclusion services (for 44 minutes each day) in World History, and counseling services (for one period of 44 minutes in the ten-day cycle). Although Mother has not accepted this IEP, she is in agreement with her son’s attending the Greater Lowell Technical High School beginning in September 2001. Testimony of Mother; Exhibit S-2.
On May 8, 2001, Parent filed with the Bureau of Special Education Appeals a Request for Hearing, contesting Dracut’s proposed placement of her son at the Merrimack Summer School Program and requesting summer placement at the Adventure Lore Camp.
STATEMENT OF THE EVIDENCE
Parent testified regarding her son’s need for a summer program. She explained that during school vacations (including vacations during the school year), her son has an extremely difficult time, as he reverses his sleep/awake patterns, withdraws (becoming isolated and depressed, with no friends), and refuses even to go to the beach with his mother.
Mother testified that at a Team meeting on April 9, 2001, the need for a summer placement was discussed for her son. She noted that during the meeting, it was agreed that her son needed to attend a summer program, and she requested that her son attend the Adventure Lore Camp in New Hampshire; Ms. Denty agreed that the camp would meet Student’s needs; but Ms. Sinclair (Dracut’s out of district coordinator) did not support this placement. Parent testified that at this April 9 th meeting, the Merrimack Summer School Program was also discussed; Parent expressed her opposition to this program; and Ms. Denty stated that she did not believe that it would meet Student’s needs.
Parent testified that the meeting notes for the April 9 th meeting reflected Ms. Denty’s remarks that her son needs a summer program in order to prevent regression, address behavior concerns and foster a more positive self image. Parent explained, however, that these remarks were not, at first, reflected in the proposed IEP until, through her advocacy, Ms. Denty’s remarks were added. Exhibits P-4, P-5, P-6, P-7, S-1.
Parent testified that Ms. Cloutier sent her a letter dated April 25, 2001 explaining that the Team first will determine whether a child needs a summer program and then meets to determine placement. Exhibit P-8.
Parent testified that a second Team meeting was held on April 26, 2001 to continue discussion of a summer program for Student, and specifically to discuss with Merrimack Collaborative staff a proposed placement at the Merrimack Summer School Program. Mother explained that the summer program director (Michael DeFelice) described it as an academically-based program that also addresses social and emotional issues. Mother noted that at the meeting, Ms. Sinclair took the position that the Adventure Lore Camp would not be provided by Dracut because it was not approved as a special education placement by the Massachusetts Department of Education.
Parent testified that she has spoken with Larry Larsen, PhD, about Student’s needs for a summer program and, in particular, about the Merrimack and Adventure Lore summer programs. Parent explained that Dr. Larsen stated that it would be more helpful for Student to attend the Adventure Lore camp as it would give Student the opportunity to be away from home and to be in a non-academic program. Parent noted that Student has seen Dr. Larsen for therapy but not since December 2000 or January 2001, and that Dr. Larsen’s knowledge of these summer programs is based only upon what Parent told him. Dr. Larsen wrote a letter to whom it may concern, dated May 8, 2001, supporting placement at the Adventure Lore Camp. Exhibit P-1.
Parent testified that she believes that the Adventure Lore Camp would be the best placement for her son because of the combination of activities, social and emotional support, and no academics. The camp brochure lists staff with counseling degrees and includes among its goals the development of self-confidence, self-esteem, and good interaction among peers. Parent’s most recent information from the camp was that only 2 of the week long sessions had open spaces – July 5 to 12, 2001 and July 23 to 28, 2001. Parent agreed that Student would need more than 2 weeks of a summer program to meet his needs. Parent explained that she obtained her information about the camp from this brochure and from talking to someone (she did not know who) at the camp by telephone. Exhibit P-10.
Parent testified that the Merrimack Middle School has been “wonderful” for her son; the school has made a very large, positive impact upon his life.
Kristen Denty testified that for the past 2 years she has been the Program Manager for the Merrimack Middle School, and prior to this position she oversaw the Merrimack behavioral assessment program for 1 year. She noted that she has been a therapist since 1997 and has a masters degree in counseling/psychology (1995).
Ms. Denty testified that she has known Student, not as his teacher, but through leading groups that included Student, attending trips with him, processing difficult issues with him and receiving information about Student from her staff.
Ms. Denty testified that Student has made excellent progress at the Merrimack Middle School – he has become a leader, made “wonderful” connections with staff and students alike, and recently graduated from 8 th grade with honors and other distinctions. She explained, however, that Student has low self esteem, in part because of his body weight, has depression and at times becomes oppositional, particularly if he believes that a situation is not fair. She further testified that when Student is not on a regular routine, he has sleep disturbance and his negative behavior is exacerbated – for example, his affect is depressed, he becomes isolated from others, and he can become oppositional. As a result, she explained, during the summer in order to avoid regression, Student needs to stay on a daily routine, with therapeutic social and emotional support.
Ms. Denty testified that during the summer Student needs the opportunity to make positive connections with adults in a small group setting, he is helped by being with other students with challenges that are similar to his own so that he does not feel isolated, and he needs to be active and involved in ways that allow him to feel positively about himself. She concluded that Student needs as much structure and routine as possible during the summer. (Ms. Denty’s recommendations regarding a summer program for Student are also reflected in a letter described below.)
Ms. Denty testified that at the April 9, 2001 Team meeting, she agreed with Mother that the Adventure Lore camp appeared to be an excellent program and also agreed that the Merrimack Summer Program would not be appropriate; but she noted that this latter opinion was based on her misunderstanding that the Merrimack Summer Program was only for students younger than Student.
Ms. Denty testified that after the April 9, 2001 meeting, she learned more about the Merrimack Summer Program. She also explained that she has known most of the staff from the program and is generally familiar with the program through her year-round work at the Merrimack Collaborative. She explained that she believes that the Merrimack Summer Program would meet Student’s needs because of its focus on social/emotional issues (for example, the Reality Therapy Approach used in the program would provide social and emotional support to Student), because Student has demonstrated that he is able to function well within the group process in which the summer program activities occur, and because the program provides the daily structure and routine that Student requires during the summer. She noted that the Reality Therapy Approach incorporates peer mediation and support, responsibility of the students to problem solve, and natural consequences rather than punishment. She also explained that during the summer program, she would be available to help Student process transition issues relevant to his attending the vocational high school in the fall.
Ms. Denty testified that Student is not at risk of regressing regarding his academics and does not need an academic component to his summer program. She concluded, however, that the amount of time devoted to academics per week (2 periods, for 40 minutes each, during 4 of the 5 days) in the Merrimack Summer Program is sufficiently small so that the program should not be considered inappropriate for Student. She also acknowledged that Student is opposed to attending a summer program with academics, and he indicated clearly at the two Team meetings that he does not want to attend the Merrimack Summer Program apparently because of its academic content.
A letter of April 24, 2001 to Sue Cloutier from Ms. Denty states that it is the position of the Merrimack Middle School that Student needs a summer program in order to (1) prevent social/emotional regression, (2) keep Student on a regular schedule since he has a history of sleep disturbance which greatly impacts his ability to attend school and (3) keep Student on a regular schedule since he has a history of sleep disturbance which may result in oppositional behavior and depressive symptomatology. The letter then explains that it is “our opinion” that the Merrimack School Summer Program would be appropriate for Student because (1) the program offers academics, community based activities and recreational activities, (2) the program would provide Student with needed structure and routine, (3) Student is familiar with the staff and facility, and (4) it is a Department of Education-approved program. Exhibit S-15.
May Clisbee testified that she has been the Senior Associate Director of the Merrimack Special Education Collaborative for the past 1 ½ years; prior to that she was the Associate Director for ½ year; and before then was a Program Manager at the Collaborative for 2 years. She noted that she has a masters degree in community counseling (1985), and has worked as a school social worker for 13 years and as a biology teacher for 1 year.
Ms. Clisbee testified that she knows Student from interviewing him 1 ½ years ago when he came to the Merrimack Middle School, through her supervision of the Merrimack Middle School (which Student has attended since March 2000) and through the April 26, 2001 Team meeting regarding summer placement (which she attended). She further explained that she is familiar with the Merrimack Summer Program as she is the person who (together with the summer program director) developed this program, as well as through her supervision of the summer program director.
Ms. Clisbee testified that this summer (2001), for the first time, there will be a separate high school component to the Merrimack Summer Program; this component will likely have several students entering 9 th grade, several students entering 10 th grade and one student entering 11 th grade. She further explained that 8 students have signed up so far, 3 more are tentative, and the high school component will take a maximum of 15 students. She noted that the maximum student/teacher ratio will be 5:1, the lead teacher is certified in special education and trained in Reality Therapy, and a second staff person is a certified teacher.
Ms. Clisbee testified regarding the Merrimack Summer Program daily schedule (Exhibit S-17) which reflects a five day program from 8:15 AM to 2:15 PM each day, including 2 periods of academics for 40 minutes each, during 4 days each week. She explained that what is typically addressed during an academic periods is multi-faceted (rather than focusing on one particular academic subject) and is related to the activities that the students will be involved with – for example, learning about various aspects of an up-coming, all-day trip to the Salem Witch Museum.
Ms. Clisbee testified further regarding the daily schedule, explaining that Mondays through Thursdays, each day there is a health seminar for 30 minutes, an elective for 35 minutes (cooking, music, art, physical education, summer program newsletter and yearbook), and activity period for 2 ½ hours. She further explained that Fridays are devoted to field trips – for example, to Canobie Lake, the New England Aquarium, Museum of Science, whale watch, Boston Freedom Trail and the Salem Witch Museum. Exhibit S-17.
Ms. Clisbee testified that she does not consider the Merrimack Summer Program to be academically-based because the primary goal of the program is not to teach academic material but rather to address social and emotional issues. She noted that at all times, any social/emotional issues that come up are addressed immediately within that context. She explained, for example, that if a social/emotional issue came up during an academic period, the academic discussion would be put on hold, and the social/emotional issue would be given priority and addressed, with the result that the students learn to resolve social/emotional issues within the context of academics. She further noted that, as explained in the description of the program (Exhibit S-16), none of the goals and objectives of the program are academic and all of the goals and objectives are related to social and emotional support and growth – for example, goals address peer interaction, communication skills to maintain positive interpersonal relationships with staff, conflict resolution, and appropriate behavior in group settings. She concluded that, in her opinion, the consistent schedule of the program, together with its focus on social/emotional support, is a perfect fit with Student’s needs for the summer.
Ms. Clisbee explained that the Merrimack Summer Program runs for 6 weeks, from July 9 to August 17, 2001.
Student’s progress reports during the current academic year indicate that Student has grown and matured socially and emotionally, and he has demonstrated leadership qualities, creativity and effort. Occasionally, he has used inappropriate language or contributed to a negative group atmosphere, but these incidents have been less frequent during the last quarter (1/27/01 to 4/12/01). Exhibits S-3, S-4, S-5.
Report cards from the Merrimack School indicate that Student received final grades of approximately a B average (ranging from C- to A) for the second half of last academic year, and grades of approximately a B average (ranging from C to A) for the first three quarters of the current academic year. Exhibits S-3, S-4, S-5, S-6, S-7, S-8. Student’s earlier report card from the Englesby Junior High School in Dracut reflects significantly lower grades, many of which are in the D range. Exhibit P-9.
A letter of April 26, 2001 to the attention of Kristen Denty from Donald Berman, MD, states that Student has been a patient in Dr. Berman’s office (Chelmsford Pediatrics) since birth, Student had a 22 pound weight gain from May to October 2000, and Student is currently 90 pounds over “ideal weight”. Dr. Berman then concludes: “I feel he would benefit physically and emotionally from a camp program.” Exhibit S-9.
FINDINGS AND CONCLUSIONS
Student is an individual with a disability, falling within the purview of the Individuals with Disabilities Education Act (IDEA), 20 USC 1400 et seq . and the state special education statute, MGL c. 71B. As such, he is entitled to a free, appropriate public education (hereafter, FAPE) which is reasonably calculated to assure her maximum possible educational development in the least restrictive environment consistent with that goal. David D. v. Dartmouth School Committee , 775 F.2d 411, 423 (1 st Cir. 1985).
A. The Issue in Dispute .
This dispute involves a summer program for Student. The state special education regulations utilize a regression standard to determine whether a summer program may be appropriate:
An extended year program may be identified if the student has demonstrated or is likely to demonstrate substantial regression in his or her learning skills and/or substantial difficulty in relearning such skills if an extended program is not provided.
603 CMR 28.05(4)(d)1.
The federal special education regulations employ a FAPE standard:
(a) General . (1) Each public agency shall ensure that extended school year services are available as necessary to provide FAPE, consistent with paragraph (a)(2) of this section.
(2) Extended school year services must be provided only if a child’s IEP team determines, on an individual basis, in accordance with §§300.340-300.350, that the services are necessary for the provision of FAPE to the child.
34 CFR 300.309.
It is agreed by the parties that Student is eligible for special education services and that he meets the requisite standards to receive a summer program pursuant to these regulatory standards. The only issue in dispute is which summer program should be provided to meet Student’s needs.
B. Student’s Needs Regarding a Summer Program .
The parties are in substantial agreement as to the nature of Student’s needs that should be met during the summer. These needs fall into two, related categories. First, in order to prevent regression, Student requires a daily routine with structure. In fact, he needs as much structure/routine during the summer as possible since even for relatively short time periods that are left unstructured (for example, school vacations during the academic year), Student has been at risk of regression socially and emotionally. Also, I note that Student will be entering a regular education school in the fall, without the therapeutic focus of the Merrimack School, and therefore his transition over the summer is particularly important in order that Student be as well prepared as possible to be successful in the fall. Testimony of Mother, Denty.
Second, Student continues to need social and emotional support. Although he has made impressive strides in addressing such issues as inappropriate peer interactions and oppositional behavior and has distinguished himself through his leadership abilities, Student continues to struggle with low self-esteem, and occasional frustration, depression and oppositional behavior. He would benefit from a therapeutic environment intended to address and promote greater maturity and skill development regarding these social and emotional issues. Testimony of Mother, Denty. Again, there is no disagreement regarding Student’s needs in this area.
C. What Summer Program Should be Provided to Student .
The only substantive issue in dispute is what particular summer placement should be provided by Dracut in order to meet Student’s needs. My analysis of this matter first focuses on Dracut’s proposed summer placement for Student. If this placement would effectively meet Student’s needs, then Dracut’s proposed placement should be provided. Conversely, if it is demonstrated that Student’s needs cannot be effectively met through Dracut’s proposed placement, I will then consider alternative summer camps, including the Adventure Lore Camp which has been specifically suggested by Parent.
The Merrimack Summer Program has an academic component which is not insignificant. Parent is correct in raising the issue of the amount of time spent on academics and whether this academic component would make the proposed summer program, as a whole, inappropriate for her son. It is agreed that Student does not need academic support during the summer, and one can readily understand his reluctance to participate in any program that appears to be focused on what he does not need, particularly with respect to academics during his summer vacation.
I am convinced, however, that although the proposed summer program in fact has an academic component (which is discussed in more detail below in part D of this Decision), the program when viewed in its entirety is focused principally on supporting students regarding their social, emotional and behavioral issues. For example, the Reality Therapy Approach, which underlies the summer program, is a therapeutic approach designed specifically to work on social, emotional and behavioral issues within a group context – for example, development of rapport and relationships within the group, helping students deal with present behaviors and attitudes, and demonstrating how each student can control him/herself and the situation in which he/she finds him/herself. Students are taught to take responsibility for their words and actions, and to help others do so as well. The summer program activities are also intended to promote better self-esteem. Testimony of Clisbee, Denty.
The written goals of the program (Exhibit S-16) similarly reflect an emphasis on social and emotional development:
· the development of appropriate interactions among and cooperation with peers,
· relationships with staff,
· behavior in group settings and social situations, and
· problem resolution.
I conclude that the predominant purpose and focus of the Merrimack Summer Program is social/emotional support and development. The program is likely to be effective in addressing Student’s needs in this area.
The Merrimack Summer Program also provides the requisite daily structure and routine that are essential for Student during the summer when school is not in session. The daily schedule of the program offers the kind of consistent, clear expectations that Student needs to stay engaged, involved and focused, and that are necessary to reduce significantly the risk of regression during the summer. Testimony of Clisbee, Denty; Exhibit S-17.1
D. Academic Component of the Program .
I now turn more specifically to the academic component at the Merrimack Summer Program.
First, it should be noted that the academic component consists of 2 periods, 40 minutes each, 4 days per week. The program runs from 8:15 AM to 2:15 PM, five days per week. Testimony of Clisbee; Exhibit S-17. The total amount of time spent in these academic periods is therefore relatively small as compared to the entire program week.
Second, it is not accurate to view the academic component as separate and distinct from the summer program. The academics are oriented towards and integrated with the non-academic activities (such as field trips) so that what is learned relates to the actual experiences of the students. Equally important, the academics are not provided simply to learn the content of what is being taught. Rather, an important purpose is to allow for the development of social, emotional and behavioral skills in an academic environment. For example, if during an academic period, a social/emotional issue comes up, the academic discussion is put on hold and the social/emotional issue is given priority and addressed immediately in that context, so that the students can learn to resolve social/emotional issues that arise within an academic environment. This is in line with the overall philosophy of the program which is to work with each person in a holistic way. I also note that none of the written goals and objectives of the proposed summer program are related directly to academic work. Testimony of Clisbee; Exhibit S-16.
From this understanding of the proposed summer program, I find that although Student does not need academic remediation or support, having just gradated from 8 th grade with honors, the academic component of the proposed summer program does not detract from the ability of this program to provide Student with both the daily structure and the social/emotional support and guidance that he needs during the summer. In fact, the holistic approach of the Merrimack Summer Program may turn out to be helpful to Student, particularly in light of his anticipated attendance at a regular education, high school program in the fall
I understand and appreciate Parent’s and Student’s resistance to the proposed summer program. Parent and Student clearly would prefer a summer program that includes no academic component, not only because academic support is not needed but perhaps more to the point, because the summer is usually thought of as a well-deserved break from academics whenever possible. But, so long as Dracut’s proposed program will effectively meet Student’s needs during the summer for daily structure and social/emotional support and guidance, I have no authority to require Dracut to do more.2
E. Conclusion with Respect to the Merrimack Summer School Program .
I conclude that the Merrimack Summer School Program would likely meet Student’s needs for six weeks during the summer and is therefore appropriate. Having made this determination, I need not address the appropriateness of the Adventure Lore Camp for Student.
F. Student’s Objections to the Proposed Summer Program and Dracut’s Response .
Notwithstanding my conclusion that Dracut has satisfied its legal obligations to Student by proposing the Merrimack Summer School Program, I return briefly to Student’s and Parent’s objections to this program, and Dracut’s response.
As noted above, it is basic to state and federal special education law, that special education and related services must only satisfy a student’s needs and therefore may turn out not to be the program that the parent and child actually want. Yet, to simply rely on this legal standard and ignore the legitimate wishes of a child or his/her parents may lead to an empty result, particularly with summer programs where the voluntary participation of the student and his/her parent may turn out to be essential to the actual implementation of what the school district is proposing.
There is a great deal at stake in the present dispute. Student has made impressive gains. He is expected to take another very large step next fall when he enters a vocational technical high school. A summer of no services is likely to be extremely problematic in terms of Student’s social and emotional well being, and therefore his ability to succeed next fall in a regular education environment at the high school level. All involved in this dispute — Student, Parent and the Dracut Public Schools — have much to be gained from a successful summer for Student.
With this in mind, Dracut should consider doing the following:
· As soon as possible, arrange a Team (or other) meeting between Student, Parent and the summer program director (Mr. DeFelice), as well as Ms. Denty (with whom Student appears to have an excellent relationship) and/or any other persons whom Parent or Dracut would like to attend.
· Use this meeting as a further opportunity (1) for Mr. DeFelice to explain to Student and his mother as clearly as possible what Student can expect to happen during the summer program, (2) for Mr. DeFelice and Dracut to understand as completely as possible Student’s and Parent’s concerns regarding the summer program and (3) for Mr. DeFelice and Dracut to explore with Student and his mother whether any modifications or additions can be made to the program structure or routine which may make the program more interesting or appealing to Student.
· Further explore with Student and Parent (at this meeting or another) Ms. Denty’s offer to be available to talk with Student over the summer regarding any transition issues related to next fall. It may be helpful for Student to understand how and when this would occur, particularly in relation to the scheduled activities of the proposed summer program.
G. Period of Time Subsequent to the End of the Merrimack Summer School Program .
Finally, I note that attendance at the Merrimack Summer School Program would leave Student with no organized structure from the end of this program (August 17, 2001) to the beginning of the school year. There was testimony that Student needs as much structure as possible during the summer. There is risk of regression when Student is without a daily routine for even this short period of time. Testimony of Denty, Parent.
However, neither the Parties nor any witness addressed what should occur during this period of time. In addition, consideration of what is appropriate and effective for Student during this time period assumes that he successfully participates in the Merrimack Summer School Program.
Dracut shall convene a Team meeting to consider and determine with Student and Parent what should be provided Student during this end-of-summer period. This shall include, but need not be limited to, consideration of a more traditional camp that would be of interest to Student and that would complement Student’s attendance at the Merrimack Summer School Program.
ORDER
Dracut shall provide Student with the Merrimack Summer School Program for this summer (2001).
Dracut shall consider what should be done in response to Parent’s and Student’s concerns regarding this Program, as described above in subsection F of this Decision.
Dracut shall convene a Team meeting to address the end-of-summer period, as described above in subsection G of this Decision.
By the Hearing Officer,
William Crane
Dated: June 26, 2001
COMMONWEALTH OF MASSACHUSETTS
BUREAU OF SPECIAL EDUCATION APPEALS
EFFECT OF BUREAU DECISION AND RIGHTS OF APPEAL
EFFECT OF DECISION AND RIGHTS OF APPEAL
The decision of the Bureau of Special Education Appeals is final and is not subject to further agency review. Because 20 U.S.C. s. 1415(i)(1)(B) requires the Bureau decision to be final and subject to no further agency review, the Bureau cannot permit motions to reconsider or to re-open a Bureau decision, once it is issued. Any party aggrieved by the Bureau decision may file a complaint in the Superior Court of competent jurisdiction or in the District Court of the United States for Massachusetts for review of the Bureau decision. 20 U.S.C. s. 1415(i)(2). Under Massachusetts General Laws, Chapter 30A, Section 14(1), appeal of a final Bureau decision must be filed within 30 days of receipt of the decision.
Except as set forth below, the final decision of the Bureau must be implemented immediately. Under G.L. c. 30A, s. 14(3), appeal of the decision does not operate as a stay; rather, a party seeking to stay the decision of the Bureau must seek such stay from the court having jurisdiction over the party’s appeal.
Under the provisions of 20 U.S.C. s. 1415(j), “unless the State or local education agency and the parents otherwise agree, the child shall remain in the then-current educational placement,” during the pendency of any judicial appeal of the Bureau decision, unless the child is seeking initial admission to a public school, in which case “with the consent of the parents, the child shall be placed in the public school program,” 20 U.S.C. s. 1415(j). Therefore, where the Bureau has ordered the public school to place the child in a new placement, and the parents or guardian agree with that order, the public school shall immediately implement the placement ordered by the Bureau. School Committee of Burlington, v. Massachusetts Department of Education , 471 U.S. 359 (1985). Otherwise, a party seeking to change the child’s placement during the pendency of judicial proceedings, must seek a preliminary injunction ordering such a change in placement from the court having jurisdiction over the appeal. Doe v. Brookline , 722 F.2d 910 (1st Cir. 1983); Honig v. Doe , 484 U.S. 305 (1988).
RECORD OF THE HEARING
The Bureau of Special Education Appeals will provide an electronic verbatim record of the hearing to any party, free of charge, upon receipt of a written request. Pursuant to M.G.L. c.30A, ss. 11(6) and 14(4), an appealing party seeking a certified written transcription of the entire proceedings, must arrange for the transcription, or portion thereof, by a certified court reporter, at his/her own expense. Transcripts prepared by the party must then be submitted to the Bureau of Special Education Appeals with appropriate court reporter certification for final review and certification. A party unduly burdened by the cost of preparation of a written transcript of the sound recordings may petition the Bureau of Special Education Appeals for relief.
COMPLIANCE
A party contending that a decision of the BSEA is not being implemented may file a complaint with the Department, whose responsibility it shall be to investigate such complaint. 603 C.M.R. s. 28.00, par. 407.0.
In addition, the party shall have the option of filing a motion with the Bureau of Special Education Appeals, requesting the Bureau to order compliance with the decision. The motion shall set out the specific area of alleged non-compliance. The Hearing Officer may convene a hearing at which the scope of inquiry will be limited to facts bearing on the issue of compliance, facts of such nature as to excuse performance and facts bearing on a remedy. Upon a finding of non-compliance, the Hearing Officer may fashion appropriate relief and refer the matter to the Legal Office of the Department of Education for enforcement.
CONFIDENTIALITY
In order to preserve the confidentiality of the child involved in these proceedings, when an appeal is taken to Superior Court or to Federal District Court, the parties are strongly urged to file the complaint without identifying the true name of the parents or the child, and to move that all exhibits, including the transcript of the hearing before the Bureau of Special Education Appeals, be impounded by the court. See, Webster Grove School District v. Pulitzer Publishing Company , 898 F.2d 1371 (8th Cir. 1990). If the appealing party does not seek to impound the documents, the Bureau of Special Education Appeals, through the Attorney General’s Office, may move to impound the documents.
NOTICE OF REVISED BUREAU PROCEDURES
ON RECONSIDERATION/REHEARING
The United States Department of Education, Office of Special Education Programs (OSEP) in its 1990 Monitoring Report, issued July 17, 1991, ordered the Bureau to amend its procedures to eliminate the availability of reconsideration or re-opening as post-decision procedures in the Bureau cases. Accordingly, parties are notified that the Bureau will not entertain motions for reconsideration or to re-open. Bureau decisions are final decisions subject only to judicial review.
In addition, parties should be aware that the federal Courts have ruled that the time period for filing a judicial appeal of a Bureau decision is thirty (30) days, as provided in the Massachusetts Administrative Procedures Act, M.G.L. c.30A. See, Amann v. Town of Stow , 991 F.2d 929 (1 st Cir. 1993); Gertel v. School Committee of Brookline , 783 F. Supp. 701 (D. Mass. 1992). Therefore, an appeal of a Bureau decision to state superior court or to federal district court must be filed within thirty (30) days of receipt of the Bureau decision by the appealing party.
1
I also note that in the Merrimack Summer Program, there is a low student/teacher ratio (maximum of 5:1), and other participants in the program have issues/concerns similar to that of Student. Testimony of Denty, Clisbee. These attributes also are likely to be helpful to Student.
2
Parent has also alleged procedural irregularities regarding meeting notes and statements included in an IEP. Having reviewed Parent’s concerns regarding these matters, I conclude that even if I were to find that she is correct regarding each of the procedural issues, this would not change my ultimate conclusion that Dracut’s obligations to her son for the summer can be met through the Merrimack Summer School Program.