COMMONWEALTH OF MASSACHUSETTS
BUREAU OF SPECIAL EDUCATION APPEALS
In Re: Dracut Public Schools
BSEA # 08-6414
RULING ON MOTION FOR PARTIAL SUMMARY JUDGMENT
This Ruling addresses the question of whether Student’s current placement at the Merrimack Special Education Collaborative (MSEC) is his stay put placement. Dracut Public Schools (Dracut) filed a Motion for Partial Summary Judgment , seeking a ruling that that MSEC is not the stay put placement. Student’s guardian ad litem filed an opposition. By agreement of the parties, this Ruling is issued on the documents, without a hearing.1
A. Summary Judgment Standard
The Executive Office of Administration and Finance Adjudicatory Rules of Practice and Procedure, which are applicable to BSEA hearings, allow for summary decision when there is no genuine issue of fact relating to all or part of a claim or defense, and the moving party is entitled to prevail as a matter of law.2
Further guidance is found by turning to judicial rules regarding a motion for summary judgment, which rules set forth a standard substantially similar to the above-referenced adjudicatory rules. Federal Rule of Civil Procedure 56(c) provides that summary judgment is appropriate when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to a material fact and that the moving party is entitled to a judgment as a matter of law.” A “genuine” issue is one that could be resolved in favor of either party, and a “material fact” is one that has the potential of affecting the outcome of the case.3
B. Facts
The pertinent facts are not in dispute, except as specifically noted below.
Student has been diagnosed with Attention Deficit Hyperactivity Disorder and Bipolar Disorder. He may also have a language-based learning disability and executive function deficits.
Student had been receiving his educational services at the Learning Center at Dracut’s Lakeview Junior High School. Student currently either is in 8 th grade or is repeating the 7 th grade.4 Through Massachusetts Department of Mental Health funding, Student resides at the Northeast Diversion Program in Haverhill, MA.
Student’s guardian ad litem filed a hearing request with the BSEA on April 29, 2008. By agreement of the parties on June 11, 2008, Student was placed at MSEC for extended year services during the summer of 2008, to be followed by placement at MSEC for a 45-day assessment to determine an appropriate educational placement. The 45-day placement at MSEC was completed on November 5, 2008. Near the completion of this placement, MSEC provided a report with recommendations, which were discussed by Student’s IEP Team on November 3, 2008. The IEP Team determined that Student requires a small group setting with a therapeutic component.
Dracut proposed that Student attend its Choices Alternative Program, which is located at the Lakeview Junior High School. Parent rejected this placement and has sought to have Student continue at MSEC.
Student’s last-accepted IEP expired in January 2008.
C. Discussion
It is not disputed that Student is an individual with a disability, falling within the purview of the federal Individuals with Disabilities Education Act (IDEA)5 and the state special education statute.6 The IDEA was enacted “to ensure that all children with disabilities have available to them a free appropriate public education [FAPE] that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living.”7 In the instant dispute, Dracut has the burden of persuasion since it is the party seeking relief.8
The issue to be addressed is whether MSEC is Student’s stay put placement.
The IDEA’s stay put provision provides, inter alia, that “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 such child.”9 Its essential purpose is to preserve the status quo pending resolution of a dispute between the parties, thereby preventing unilateral action by a school district in contravention of a student’s or parent’s objection, until the completion of due process proceedings .10
The Massachusetts special education regulations state that an extended evaluation is not to be considered a “placement”.11 Therefore, the normal procedural requirements relevant to a student’s educational placement (such as stay put) may not apply to an extended evaluation.12
Additional guidance is found in the federal court decisions that consider a student’s stay put placement after a temporary or interim educational placement. The facts of the instant dispute are analogous to those in the First Circuit’s decision in Verhoeven v. Brunswick School Committee . In Verhoeven , as in the instant dispute, the parties expressly agreed that the student would be placed in a particular setting for a certain period of time, with no agreement that the student’s placement would extend beyond this time period. In dicta, the court explained its rationale for concluding that this temporary setting is not the student’s stay put placement.
The policy behind section 1415(j) supports an interpretation of “current educational placement” that excludes temporary placements like P.J.’s SMLC placement. Section 1415(j) is designed to preserve the status quo pending resolution of administrative and judicial proceedings under the Act. The preservation of the status quo ensures that the student remains in the last placement that the parents and the educational authority agreed to be appropriate. However, in the case of P.J.’s temporary placement at SMLC, Brunswick and the Verhoevens never agreed that P.J. would be placed at SMLC beyond June 1, 1998. To the contrary, the parties expressly agreed that P.J. would only be placed at SMLC during the 1997-98 school year. Therefore, to maintain P.J. at SMLC during the pendency of the Verhoevens’ challenge would actually change the agreed-upon status quo, not preserve it. Thus, because a reading of “current educational placement” that includes the temporary SMLC placement at issue here would thwart the purpose of section 1415(j) , we decline to adopt such a reading.13
Other courts have similarly concluded that a temporary or interim placement is not a student’s stay put placement. These temporary or interim placements typically are scheduled to end on a specific date or after a specific period of time and are usually contemplated by the parties as a one-time occurrence.14 I am aware of no judicial decisions to the contrary.
By agreement of the parties, the MSEC placement was utilized by Dracut for extended year services during the summer of 2008, followed by an extended evaluation of 45 days. The MSEC placement was not otherwise intended to be utilized as Student’s educational placement.
I find that the parties intended the MSEC placement to end on November 5, 2008, which marked the completion of the 45-day extended evaluation. As a placement with a specific end date and no understanding that the placement may continue past this date during the regular school year, MSEC cannot be considered Student’s stay put placement for purposes of educational services during the regular school year.15
D. Order
For these reasons, Dracut’s Motion for Partial Summary Judgment is ALLOWED . This case will proceed to hearing, as scheduled, on December 16, 2008.
By the Hearing Officer,
_________________
William Crane
Date: December 3, 2008
1
Student’s guardian ad litem is attorney Joseph Presti. Dracut is represented by attorney Kevin Murphy.
2
801 CMR 1.01(7)(h). These rules govern BSEA proceedings pursuant to 603 CMR 28.08(5)(b).
3
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-50 (1986) .
4
The parties disagreed on this fact, but the fact is not material to resolution of the instant dispute.
5
20 USC 1400 et seq .
6
MGL c. 71B.
7
20 USC 1400(d)(1)(A). See also 20 USC 1412(a)(1)(A); MGL c. 71B, ss. 2, 3.
8
Schaffer v. Weast , 546 U.S. 49, 62 (2005).
9
20 USC § 1415(j); 34 CFR §300.518.
10
CP v. Leon County School Bd. Florida , 483 F.3d 1151, 1156 (11th Cir. 2007) (“provision amounts to, in effect, an automatic preliminary injunction, maintaining the status quo and ensuring that schools cannot exclude a disabled student or change his placement without complying with due process requirements”); Verhoeven v. Brunswick School Committee , 207 F.3d 1, 3, 10 (1st Cir. 1999) (preservation of the status quo ensures that the student remains in the last placement that the parents and the educational authority agreed to be appropriate).
11
603 CMR 28.5(2)(b)5 (“The extended evaluation shall not be considered a placement.”).
12
See In Re: Melrose Public Schools & C. M ., BSEA # 07-4987, 13 MSER 70 (2007) (“diagnostic program … cannot, by regulation, be a Student’s ‘Stay Put’ placement”); In Re: Melrose Public Schools , BSEA # 07-2782 (2006) (at the completion of student’s extended evaluation, his stay put placement was a return to his regular education placement).
13
Verhoeven v. Brunswick School Committee , 207 F.3d 1, 10 (1 st Cir. 1999) (internal quotation marks and citation omitted).
14
Leonard v. McKenzie , 869 F.2d 1558, 1564 (DC Cir. 1989) (time-limited placement not considered stay put);
Casey K. v. St. Anne Community High School Dist. No. 302 , 400 F.3d 508, 517 (7 th Cir. 2005) (“ district’s temporary and conditional acquiescence in the parents’ unilateral action cannot constitute an ‘educational placement’ for purposes of the stay-put requirement”); Stanley C. v. M.S.D. of Southwest Allen County Schools , 2008 WL 2228648 ( ND Ind. 2008) (court denied parents’ request for stay put order where agreements between the parties included funding only for a definite time period); Gabel v. Board of Education, 368 F. Supp. 2d 313, 325 (SDNY 2005) (“agreement in which a Board of Education agrees to pay tuition to a private school makes that school the child’s pendency placement unless the stipulation is explicitly limited to a specific school year or definite time period”).
15
The only issue to be decided by this Ruling is whether MSEC is Student’s stay put placement for purposes of the regular (as compared to extended) school year. Presumably, Student’s stay put placement is whatever his stay put placement was prior to being placed at MSEC. The parties did not provide the last-agreed-upon IEP or other information sufficient for me to determine the specific location or services of Student’s stay put placement.