DEPARTMENT OF EDUCATION
BUREAU OF SPECIAL EDUCATION APPEALS
In Re: Belmont Public Schools
BSEA #06-2596
DECISION BASED ON WRITTEN MATERIALS UNDER RULE XII A.
This decision is issued pursuant to the Individuals with Disabilities Education Act, (“IDEA,” 20 USC §1400 et seq .), as amended by P.L. 108-446 (Individuals with Disabilities Education Improvement Act of 2004 or “IDEA-2004”), §504 of the Rehabilitation Act of 1973 (29 USC §794), Chapter 766 of the Acts of 1973 (M.G.L. c. 71B), the Massachusetts Administrative Procedures Act (M.G.L. c. 30A), and the regulations promulgated under these statutes.
At issue is whether the Belmont Public Schools is required to provide round-trip transportation services to enable Student, who attends residential school in Brewster, MA, to visit with her family in Belmont.
On December 2, 2005, Student’s aunt and guardian (Aunt or Guardian) filed a hearing request with the Bureau of Special Education Appeals (BSEA) seeking an order to Belmont to provide transportation services for Student between her residential school in Brewster and family home in Belmont. On December 22, 2005, the Belmont Public Schools (Belmont or School) challenged the sufficiency of the request, and on December 27, 2005 I ruled that the hearing request was insufficient. The Guardian timely filed an amended hearing request on January 10, 2006, seeking round-trip transportation on a regular basis as well as reimbursement for transportation that the guardian provided and for other expenses. On January 20, 2006, Belmont filed a response to the hearing request, with attachments. The BSEA assigned a hearing date of February 14, 2006. This date was postponed at the School’s request. A pre-hearing conference was held on February 28, 2006. Pursuant to agreements reached at that conference, I issued an order stating that the Parties would file a Joint Stipulation of Facts by April 10, 2006 and that a decision would be issued on the basis of the stipulated facts and other written submissions of the parties as allowed by Rule XII A. of the Hearing Rules for Special Education Appeals . After requesting and receiving an extension of the filing deadline, the parties filed their stipulations, together with a Joint Motion for Judgment on the Pleadings1 on April 24, 2006, and the record closed on that day.
The evidentiary record consists of the Guardian’s amended hearing request, the School’s response thereto with attachments, and the parties’ Stipulations and attached exhibits A and B.2
ISSUES
The issues for hearing are:
1. Is Belmont required to provide transportation for Student between the Latham Center in Brewster, MA and her home in Belmont one weekend per month and at holidays and vacations?
2. If so, under what conditions should such transportation be provided?
POSITION OF THE PARTIES
Position of Guardian
Student has a close relationship with her family, and benefits from frequent, regular visits. She is able to make the trip safely on a bus, with a monitor, and Belmont is responsible for providing it.
Position of School
Belmont is concerned about potential risks of transportation in light of Student’s profile and reports of behavioral incidents, as well as about potential liability of Belmont, and believes that if Student is transported by someone other than a family member, she requires a trained transportation monitor to be on the vehicle at all times. Belmont is willing to reimburse the Guardian for transporting Student but is not willing to undertake transportation of Student unless ordered to do so by the BSEA.
FINDINGS OF FACT
PARTIES’ JOINT STIPULATION OF FACTS
1. Student, DOB 5/13/88, has lived with her aunt and uncle (“Aunt” and “Uncle”) since approximately the age of seven years.
2. Aunt and Uncle reside in Belmont. At all relevant times they have resided in Belmont, Massachusetts.
3. Belmont Public Schools is the local educational agency (LEA) responsible under state and federal law for the provision of a free appropriate public education (FAPE) to Student.
4. On or about July 29, 1995, Aunt was granted full guardianship of Student.
5. Student’s diagnoses include bipolar disorder, Tourette’s disorder, mild mental retardation, ADD/NOS, and [she] has a history of witnessing domestic violence along with a history of physical abuse.
6. Student, prior to September 2004, had been attending a special therapeutic program outside of the Belmont Public Schools. In that placement, her behavior had gotten progressively inappropriate and aggressive.
7. On September 24, 2004, Student was psychiatrically hospitalized. Student remained in the hospital for approximately six (6) months during which time various assessments were completed and medication trials were instituted.
8. Student was discharged from the hospital and admitted to the Latham Center on March 29, 2005. Student has been in attendance at the Latham Center since that date continuously. Student is in a residential program at the Latham Center because she requires around-the-clock care and education.
9. Aunt and Uncle have continued to be active participants in Student’s educational planning and her life. Student has a close relationship with Aunt and Uncle, and in particular with her guardian, Aunt. Originally, when Student was placed at the Latham Center, the Latham Center, consistent with its normal practice, would not allow any home visits until Student’s behavior and consistency had stabilized.
10. On or about May 13, 2005, after Student’s initial six week period at the Latham Center, an IEP TEAM Meeting was held, and a six (6) week assessment report was generated. The IEP that was generated as a result of that TEAM Meeting is for the period of May 13, 2005 up to and including May 13, 2006. A copy of that IEP is attached hereto as Exhibit A. That IEP noted some improvements since Student began at the Latham Center. However, Student’s behavior continued to be difficult to manage with incidents of aggression and “bolting”.
11. The IEP did not provide for transportation home on any occasion due to Belmont’s concern about Student’s safety during transport, especially since it was at least a 2.5-hour trip each way, and also because of Belmont’s inability to identify a transporter. Even as of the date of the IEP, however, Latham had not indicated that Student was safe to be transported.
12. On or about September 14, 2005, Sally Smith, Director of Special Education for the Belmont Public Schools, received a letter, dated September 8, 2005, and signed by Kathy Pierce, Clinical Director of the Latham Center, in which Ms. Pierce indicated that she was writing at the request of Aunt and Uncle. In that letter she indicated:
“I want to assure you that Student is safe to transport to and from the Aunt’s and Uncle’s household. I have checked with her direct care staff and they report that they have never had a behavioral problem with Student on any outing since she arrived at Latham.”
In the letter she also recommended that Student be transported on a monthly basis with provision for an occasional added trip on special occasions and/or holidays.3
13. Despite the letter, Belmont continued to have grave concerns about the safety of Student’s being transported for a 2.5-hour trip each way, in view of Student’s behaviors. While the September 8, 2005 letter indicated that Student was safe to transport, there had been no evidence that a trip of this length had been undertaken. Further, it was not clear the circumstances of the various outings and the level of staffing. In addition, Belmont continued to receive incident reports regarding Student up to and including the date of the pre-hearing conference on February 28, 2006. These incident reports reported that Student engaged in aggressive behavior such as throwing things, hitting staff, kicking staff, banging on windows, and that she continued to bolt on occasion.
14. Aunt and Uncle continue to feel that Student requires a monthly visit with them. Student and the Aunt and Uncle look forward to these monthly visits, and the Aunt and Uncle have made various arrangements over the course of time from at least September, 2005 up to the present date to have Student transported to their home.
15. Belmont, despite its previous position that Student was not safe to transport, has contacted various transporters to see if any transporter would be willing to transport Student to and from the Latham Center. However, Belmont believes that such transportation must also include a trained monitor to ensure the safety of Student on the long ride to and from Belmont from the Latham Center in Brewster, Massachusetts, as well as to ensure the safety of the driver of the transportation company.
16. To date, Belmont has not been able to identify a transporter to transport Student to and from Latham Center in Brewster, which also had the ability to provide a trained monitor. Belmont has been in contact with no less than twelve (12) transporters, other school districts, or other sources of information concerning a possible transporter.
17. Aunt and Uncle continue to want Student to come home once a month for a visit. For various reasons, neither of them can do the 2.5-hour drive, although Belmont continues to be willing to reimburse them were they able to transport to and from the Latham Center.
18. While Belmont at this stage, may agree that transportation should be provided, as outlined by the Latham Center, Belmont feels strongly that given Student’s behavior, her age, and her diagnoses, that a trained monitor is necessary.
19. Therefore, Belmont would not agree to the provision of transportation unless it included a trained monitor, at least initially.
20. Belmont also has grave concerns about the potential liability of the Belmont Public Schools in transporting Student given her profile and the consistency of the incident reports. Therefore, Belmont is desirous of obtaining a Hearing Officer Order providing for transportation, with a trained monitor, for Student as recommended by the Latham Center so Belmont could rely upon the Order in a liability situation.
ADDITIONAL FINDINGS OF FACT
21. As stated in Finding #11, Student’s current IEP that covers the period 5/13/05 to 5/13/06 contains no provision for transportation. For this reason, Guardian partially rejected the IEP on 6/17/05, stating, “the rejected portion pertains to the Belmont Public Schools not providing transportation to [and] from the Latham School (weekend visits.)” (Ex. A)
22. In its Joint Motion for Judgment on the Pleadings , Belmont disclosed that as of April 1, 2006, after contacting more than thirty (30) school districts, private schools, collaboratives, and transportation companies, it identified a transporter, which was willing to provide the transportation with a trained monitor on a monthly basis.
CONCLUSION AND ORDER
The parties agree that Student is a school-aged person with a disability who is entitled to a free, appropriate public education (FAPE) pursuant to federal and state law.4 The parties also agree on Student’s profile and educational needs, that Student’s current residential placement at the Latham Center is appropriate. Moreover, the parties agree that Student benefits from regular visits to her home and family. At issue is whether Belmont is required to provide the transportation services requested by the Guardian for the visits that both parties deem appropriate for Student.
After reviewing the parties’ submissions, including the Guardian’s amended hearing request, the School’s response with attachments, the Parties’ Joint Stipulations of Fact and Exhibits A and B attached thereto, I conclude that Belmont is required to provide the transportation requested, with an appropriately trained monitor on the vehicle at all times that Student is being transported. My reasoning follows.
Both federal and state law include transportation in their respective definitions of “related services” that may be required to provide a child with FAPE, and as such must be listed in the child’s IEP. The IDEA states the following:
The term “related services” means transportation , and such…other supportive services…as may be required to assist a child with a disability to benefit from special education…IDEA-2004 at §602(26) (emphasis supplied). Additionally, the Massachusetts special education statute explicitly authorizes transportation for special education students:
If a school aged child with a disability attends a school approved by the department [of Education] within or without the city or town of residence of the parent or guardian, the [school district] may be required by the department to provide transportation once each day including weekends where applicable to and from such school while the child is in attendance. The city or town providing transportation…shall be reimbursed according to [G.L. c. 71B, §14].
G.L. c. 71B, §8. The applicable state regulations direct school districts to provide transportation if the TEAM determines “that the student’s disability requires transportation or specialized transportation arrangements in order to benefit from special education…” and shall so note on the Student’s IEP. “In such circumstances, transportation is a related service.” 603 CMR 28.06(8)(b).
The regulation further provides that the TEAM “shall determine necessary modifications, special equipment, assistance, need for qualified attendants on vehicles, and any particular precautions required by the student and shall document such determinations in the student’s IEP.” Id. at 28.06(8)(b) A school district’s transportation responsibility extends to providing a “qualified attendant” if recommended by the TEAM, informing drivers and attendants in writing of student needs or problems related to transportation, and providing in -service training to drivers and assistants. 603 CMR 28.08.
Here, Student’s IEP does not provide for transportation of any kind, even though Student’s school in Brewster is an approximately 2.5 hour drive from her home in Belmont. Belmont’s rationale for not providing the related service of transportation was that at the time the IEP was written and for some time thereafter, Belmont believed Student could not be transported safely for that distance and, in any event, could not identify a transportation provider. (See Stipulation #11)5 Since September 2005, however, staff at the Latham Center have felt that Student can be transported safely between home and school, and so indicated in the September 8, 2005 letter from the Latham Center’s Clinical Director to Belmont’s special education director. (Ex. B, attached to Joint Stipulations of Fact ) In that letter, the Clinical Director recommended such transportation “on a monthly basis, with provision for an occasional added trip on special occasions and/or holidays.” (Id.) The letter further stated that regular trips home would support Student’s progress:
Visits with family members are encouraged and they are important to [Student] and her family. Visits will also allow [Student] to practice her new coping strategies, and developmental skills. We will also encourage the [Aunt and Uncle] to increase their structure while [Student] is on her home visits. Case managers often work out contracts with students and their families prior to visits, and this allows the parents to implement structure that has been agreed upon and signed by the student. We have found that students are willing to “work” the program while at home, and…return feeling a sense of pride in their ability to take responsibility for their behavior.
(Id.)
Belmont has presented no evidence contrary to Latham’s position on the benefit to Student from visits per se . Rather, Belmont’s concern is that despite Latham’s letter, Student might still not be capable of being transported safely between Brewster and Belmont without a trained monitor or aide on the transportation vehicle. Belmont’s concerns are supported by the record, including incident reports attached to Belmont’s response to Guardian’s hearing request. Aunt and Uncle do not oppose a transportation monitor.
Clearly, Student’s disability profile, which includes intellectual, emotional, social, and behavioral challenges, warrants the opportunity to generalize the social and behavioral skills discussed in her IEP to the home setting, as stated by Latham’s clinical director in the September letter, so that she can increase her ability to function independently in the community. I find, therefore, that the opportunity for visits home as recommended by Latham Center staff in the September 8, 2005 letter of the Clinical Director is necessary for Student to receive FAPE, and transportation for those visits is a necessary related service that Belmont is required to provide for Student. Because transportation is a necessary related service, it must be included in her IEP. 603 CMR 28.06(8)(b).
I also conclude that the combination of Student’s disabilities, behavioral issues, and age, as stipulated by the parties and documented both in her IEP (Ex. A) and incident reports attached to Belmont’s Response to the amended hearing request give rise to the need for a trained transportation monitor to help assure Student’s safety, that Belmont must amend Student’s IEP accordingly, and must ensure that a monitor is hired, appropriately trained, and present on Student’s vehicle. 603 CMR 28.06(8)(b), 28.08
Finally, in her amended hearing request, the Guardian requested reimbursement for the cost of providing transportation to Student, for expenses (lost wages and mileage) incurred in attending a November 2005 meeting, and attorney fees expended for legal advice in drafting the amended hearing request. In its response, Belmont opposed reimbursement for any trips made by or on behalf of the Guardian prior to the September 8, 2005 letter indicating Student was safe to transport, as well as for expenses of the November meeting, lost wages, and attorney fees.
The BSEA has no jurisdiction to order reimbursement for lost wages or attorney fees. As for transportation expenses prior to September 2005, and relative to the meeting of November 2005 there is insufficient evidence before me to indicate whether those expenses were necessary for FAPE, as the main issue addressed by the Joint Stipulations is how transportation can be safely provided from this time forward. Therefore, that claim is dismissed without prejudice.
ORDER
Belmont is hereby ORDERED to immediately amend Student’s IEP to provide for round-trip transportation of Student between her residence in Belmont and her school placement at the Latham Center in Brewster, at least one weekend per month, holidays, vacations, special occasions agreed to by the TEAM, and the beginning and end of the school term, or according to such schedule as the TEAM agrees is appropriate, based on Student’s needs. The transportation vehicle shall be driven by an appropriately trained driver, there shall be a trained monitor on the vehicle at all times that the Student is being transported for visits, and the amended IEP shall so state.
By the Hearing officer,
__________________________ _______________________
Sara Berman
May 19, 2006
1
I am treating the Joint Motion as a request for a decision based on written materials under Hearing Rule XII A., to be consistent with the order of February 28, 2006.
2
I have deleted the names of the Student and her guardian and family members from the Stipulations . Additionally, I have not attached the Exhibits A and B to this decision but rather simply refer to them as part of the evidentiary record. (See Note 3.) Otherwise, I have reproduced the Stipulations verbatim.
3
A copy of that letter of September 8, 2005 was attached to the parties’ Joint Stipulations as Exhibit B, and is part of the record but is not attached to this Decision.
4
20 USC §1401, et. seq.; MGL c. 71B., and applicable regulations
5
This decision does not address the issue of whether a school district is ever permitted to issue an IEP for an out-of-district placement without providing for the transportation necessary to get the child to and from school.