COMMONWEALTH OF MASSACHUSETTS
BUREAU OF SPECIAL EDUCATION APPEALS
In Re: Harold1 and the Foxborough Public Schools
BSEA #10-6287/10-7942
Decision
This Decision is issued pursuant to M.G.L.c. 71B and 30A, 20 U.S.C. 1401 et . seq. , 29 U.S.C. 794 and the regulations promulgated under those statutes. A hearing was held in the above-entitled matter on June 22, 2010 at the Department of Elementary and Secondary Education in Malden, Massachusetts. Present for the Hearing were:
Ms. H. Parent
Mr. H. Parent
Arlene Grubert Director of Special Education, Foxborough Public Schools
Thomas Nuttall Attorney for Foxborough Public Schools
Lindsay Byrne Hearing Officer – BSEA
The official record of the Hearing consists of: documents submitted by Ms. H. labeled P-1 through P-17, documents submitted by the School labeled S-1 through S-8, and approximately 1½ hours of testimony and argument. The record closed on June 22, 2010.
ISSUE
Whether Harold is entitled to receive “stay put” extended year services during the summer of 2010 pursuant to 20 U.S.C. 1415 (j) consistent with those outlined in a Decision issued in BSEA #06-3158 on May 30, 2006?
SUMMARY OF THE EVIDENCE
The pertinent facts are not in dispute and may be briefly summarized:
1. There is a significant history of conflict among the parties. On May 30, 2006 the BSEA issued a Decision2 finding, among other things, that Harold should participate in a summer special education program focused on addressing his social and behavioral needs for a minimum period of 2 hours per day, 4 days per week, for 6 weeks (48 hours). The Decision was not appealed. (Administrative Notice).
2. On September 20, 2006, Foxborough Regional Charter School proposed an IEP which lacked extended year services. Ms. H. rejected the omission of a summer program and invoked Harold’s “stay put” rights. (P-3)
3. On November 27, 2006, Foxborough Regional Charter School proposed an IEP which lacked extended year services. The Additional Information section of the proposed IEP noted that Harold had attended the “Confidence Connection” in Wellesley during the summer of 2006 to prevent regression in social skills and to conform with the recent BSEA Decision. Among other things Ms. H. rejected the omission of extended year services and invoked Harold’s “stay put” rights. (P-4).
4. On June 6, 2007, Foxborough Regional Charter School proposed an IEP which included a provision for a “summer school” for 2 hours per day, 4 days per week for six weeks to focus on social skills. Ms. H. responded on August 12, 2007 accepting the extended school year services, but rejecting the lack of “pertinent and accurate ESY details for 2007” and invoking “stay put.” (P-6)
5. On November 13, 2007, Reading Public Schools proposed an IEP which included a schedule modification for “extended school year” but noted that the Team would reconvene in April 2008 to determine eligibility, type and service delivery schedule for summer programming. The Parents rejected the omission of identification of extended year placement, schedule, and goals and invoked Harold’s stay put rights. The Parents wrote that Harold was entitled to a “stay put” summer program consistent with the BSEA Decision in #06-3158 and the actual provision of summer 2007 services at the “Confidence Connection” by the Foxborough Regional Charter School. (P-8; S-8)
6. On November 26, 2008 Westwood Public Schools proposed an IEP which did not provide for any schedule modification or for any extended year services. The IEP stated that the Team would reconvene in March of 2009 to determine eligibility and, if necessary, location and service delivery schedule for extended school year services. Ms. H. rejected the omission of extended year services and invoked “stay put.” (P-11, S-6).
7. On January 16, 2009, Westwood Public Schools proposed an IEP which included a summer social skills program for 2½ hours per day for 4 days per week for 5 weeks (50 hours) during the summer of 2009. Ms. H. accepted the determination of eligibility for extended year services, but rejected the proposed program because the Team had not discussed Harold’s needs. She invoked “stay put.” (P-12, S-5)
8. On May 8, 2009 Ms. H. filed a Request for Hearing with the BSEA. On May 20, 2009 the Parents and Westwood had a Resolution Meeting which resulted in a written, signed Resolution Agreement concerning summer 2009 services (P-13, S-4).
9. On October 14, 2009 Westwood proposed an IEP which lacked any provision for extended year services. The IEP noted that the Team would reconvene during the spring of 2010 to determine Harold’s eligibility for summer programming. Ms. H. rejected the omission of extended year services for Harold and invoked “stay put.” (P-14, S-3)
10. On November 13, 2009 Westwood proposed an IEP which did not include extended year services. The IEP acknowledged Harold’s participation in summer programming during 2009 and indicated that the Team would reconvene in the spring of 2010 to determine Harold’s eligibility for services during the summer of 2010. No parental response is included in the record and the proposed IEP is presumed rejected. (S-2).
11. Sometime after November 13, 2010 Harold moved to Foxborough. The Foxborough Public Schools developed an IEP for Harold substantially similar to that then being implemented by Westwood. (S-1). The Foxborough Team reconvened in February 2010 and proposed an IEP on April 7, 2010 which lacked any provision for extended year services. On May 12, 2010, Ms. H. rejected the omission of summer services and invoked “stay put” seeking the type and level of extended year services outlined in the BSEA Decision #06-3158. (P-15).
12. Ms. H. testified that she accepted the findings and order of the BSEA Decision in #06-3158 concerning the parameters of necessary special education summer services for Harold. Ms. H. stated that since that Decision was issued on May 30, 2006, no proposed IEP has offered the type or level of summer services deemed appropriate by the BSEA. Ms. H. has consistently rejected each proposed IEP due to its failure to provide for that level of summer service for Harold. (Ms. H.)
CONCLUSIONS OF LAW
At the conclusion of Ms. H.’s presentation of evidence, the School moved to Dismiss the Appeal. Foxborough asserted that Ms. H. could not prove her claim that Harold was entitled to “stay put” summer services in 2010 because she had waived all “stay put” claims in a 2009 Resolution Agreement with Westwood. The Parent argued that she had carefully and consistently preserved Harold’s entitlement to “stay put” summer services since May 2006 by rejecting all attempts to exclude or alter extended year services in any proposed IEP and in the Resolution Agreement.
The IDEA 2004 provides that during the special education dispute resolution process, the Student will remain in the “then current” educational placement unless the State or local educational agency and the parents agree to a different arrangement. 20 U.S.C. § 1415 (j); 34 CRF 300.518; 603 CMR 28.08(7). To determine the “then current” educational placement one must look at which special education program elements have been accepted by the parents and require implementation by the school district at the time a party begins the special education dispute resolution process. The program and placement may appear on an accepted IEP(s) and Amendment(s) or a portion thereof. This represents agreement between the Parents and the local educational agency. Alternatively, a student’s “agreed upon” program may be set out in a BSEA Decision. This represents agreement between the parents and “the State.” The terms “then current” educational placement, “last accepted” placement and “stay put” placement are functionally equivalent.
In this matter the record shows that the type, level, and timing of extended year special education services for Harold were set out in a BSEA Decision issued in May of 2006 and not changed since then. No intervening IEPs proposing a different level of service have been accepted by Ms. H. Indeed she has made abundantly clear her expectation that summer services consistent with the 2006 BSEA Decision be delivered each subsequent summer. There is no indication in this record that any responsible school district sought clarification of, or relief from, its “stay put” responsibilities through the BSEA process until May 2010. Therefore I find that Harold is entitled to “stay put” extended year services as described in the May 30, 2006 BSEA Decision.
Foxborough argues that the parents “otherwise agree[d]3 ” to a different arrangement for summer services in a May 2009 Resolution Agreement which also contained a waiver of “stay put” rights. Foxborough asks now to be relieved of responsibility for implementing previously and currently accepted summer programming due to the existence of a Resolution Agreement between the Parents and Westwood4 . The question for resolution then is whether the Resolution Agreement determines Harold’s “stay put” placement? The simple answer would be that a Resolution Agreement satisfies the “otherwise agreed” criteria set out at 20 U.S.C. § 1415(j) and thus becomes the student’s “last accepted” and “stay put” educational program (assuming the Resolution Agreement concerned educational programming). The more complex answer rests on interpretation of the actual language of the Resolution Agreement, the import of which is, in this case, in dispute. I find, however, that Congress specifically allocated responsibility for interpretation and enforcement of Resolution Agreements reached during the IDEA’s dispute resolution process to the Courts.
In the case that a resolution is reached to resolve the complaint at a meeting… the parties shall execute a legally binding agreement that is… enforceable in any state court of competent jurisdiction or in a district court of the United States.
20 U.S.C. 1415(f)(B)(iii)
The Federal Regulation implementing this statutory section expands the language somewhat adding that agreements reached in required resolution meetings are enforceable in state or U.S. District Court,
“or, by the SEA, if the State has other mechanisms or procedures that permit parties to seek enforcement of resolution agreements.” 34 CFR § 300.510 (d)5 .
Massachusetts has not developed those “other mechanisms or procedures” and has not specifically designated either the SEA, or the non-SEA BSEA, as a review or enforcement entity.
I note that Congressional treatment of Resolution Agreements is substantially similar to that of agreements reached in the voluntary mediation process that states must offer as one component of the dispute resolution process under the IDEA. Despite setting up an extensive formal administrative hearing system to consider complaints concerning the development and implementation of IEPs, Congress specifically and repeatedly reserved consideration and enforcement of both Resolution Agreements and Mediation Agreements to the courts. Presumably it chose this route to shield the administrative hearing process from consideration of programmatic or financial arrangements the parties might voluntarily enter in to that could alter the rights guaranteed to the parties or otherwise contravene specific portions of the IDEA that the administrative hearing officer is bound to uphold. The IDEA’s silence on the role of the administrative hearing officer in the mandatory resolution meeting process leads me to conclude that Congress intended to create and maintain separate dispute resolution paths: one flexible, informal and speedy, with a consensual outcome, as mediation and resolution meetings are designed to be, and one more formal, mandatory; with outcomes predictably and uniformly consistent with the IDEA’s plain language, as administrative hearings are designed to be. By assuming administrative oversight of the IDEA resolution meeting process in order to review and enforce Resolution Agreements as Foxborough urges, the BSEA would be disregarding Congressional intent. As there are no judicial decisions or regulatory amendments in this jurisdiction that would require the BSEA to take such a difficult position, I decline to do so. I find, therefore, that in an administrative hearing the interplay between 20 U.S.C. § 1415 (j) and 20 U.S.C. § 1415 (f) requires that an eligible student’s “stay put” rights be determined by reference to the last accepted IEP or Decision without regard to an intervening Resolution Agreement. In this matter then, Harold’s “stay put” services are set out in the Decision in BSEA #06-3158.
5 Note that regulators re-iterate that enforcement of resolution agreements in the first instance lies with the Courts:
§ 300.357 State Enforcement Mechanisms Notwithstanding §§ 300.506(b)(7) and 300.510(d)(2), which provide for judicial enforcement of a written agreement reached as a result of mediation or a resolution meeting, there is nothing in this part that would prevent the SEA from using other mechanisms to seek enforcement of that agreement, provided that use of those mechanisms is not mandatory and does not delay or deny a party the right to seek enforcement of the written agreement in a State court of competent jurisdiction or in a district court of the United States.
Finally, turning to Foxborough’s Motion to Dismiss, I find that Ms. H. has stated, and proven, a claim upon which relief can be granted6 . She has shown by a preponderance of the evidence that the last accepted determination and description of appropriately tailored extended year services for Harold is contained in the BSEA Decision #06-3158. Therefore Foxborough’s Motion to Dismiss is DENIED.
ORDER
Harold is currently entitled to a minimum of 48 hours of extended year “stay put” special education services focused on addressing his social and behavioral needs.
__________________________
June 28, 2010
Lindsay Byrne, Hearing Officer
1
“Harold” is a pseudonym chosen by the Hearing Officer to protect the privacy of the Student in documents available to the public.
2
In Re: Foxborough Regional Charter School , 12 MSER 129, 146 (2006).
3
Maintenance of current educational placement. Except as provided in subsection (k)(4), 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… until all such proceedings have been completed…
4
I note that Foxborough’s proposed IEP does not incorporate other substantive elements of the Resolution Agreement (Cf. S-1, P-15 AND S-4, P-13.)
6
801 CMR 1.01 (7)(g)(3), BSEA Rule 17B.