COMMONWEALTH OF MASSACHUSETTS
SPECIAL EDUCATION APPEALS
In Re: Berkshire Hills Regional School District
BSEA # 03-2062
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.
The parties agreed that this dispute would be addressed on the basis of written documents and oral argument, without live testimony from witnesses. A Hearing was held by telephone on March 26, 2003 before William Crane, Hearing Officer. Those included in the telephonic Hearing were:
Student’s Mother
Philip Grandchamp Attorney for Berkshire Hills Regional School District
The official record of the hearing consists of documents submitted by the Parent and marked as exhibits 1 through 5 (hereafter, Exhibit P-1, etc.); documents submitted by the Berkshire Hills Regional School District (hereafter, BHRSD) and marked as exhibits 1 through 51 (hereafter, Exhibit S-1, etc.); written argument and request for relief submitted by Parent dated March 18, 2003; and approximately one hour of recorded oral argument.
ISSUES PRESENTED
For the time period from the beginning of the current school year (2002-2003) forward, whether the IEPs have required a class of six to eight children; and if the IEPs have so required, whether this requirement has been implemented by the School District; and if the IEPs have so required but have not been implemented, what compensatory services (if any) must be provided by the School District.
PROFILE AND INDIVIDUALIZED EDUCATION PROGRAM
Student is a friendly, outgoing seven-year-old child who resides in Great Barrington, MA, with her Mother. Currently she is in the 1 st grade. Exhibits P-1, S-5, S-49.
Student has been diagnosed as having a pervasive developmental disorder of the Autistic Spectrum type affecting language and social areas. Visual spatial, psycho-motor, and significant attention deficit difficulties are also evident. She has difficulty processing and using language. Exhibits P-1, S-5, S-49.
Student’s Individualized Education Program (IEP) for the period 8/28/02 to 6/20/03 was accepted in full by Mother on July 18, 2002. This IEP called for placement in a “separate small class (6-8 students) with an inclusive setting for lunch, recess and specials with the support of the language class teacher and aide.” Exhibit S-5.
A new IEP was proffered by BHRSD for the period 12/20/02 to 6/20/03, which Mother accepted in part but rejected the placement. The placement was described by the IEP identically to the 8/28/02 to 6/20/03 except that the phrase “(6-8 students)” was not included in the placement description. Exhibit S-40.
Another IEP was proffered for the period 1/7/02 to 1/7/03, which Mother accepted in part, but again rejected the placement. The proposed placement described a “small group instruction” and 1:1 tutoring throughout the school day. Exhibit S-2.
The last relevant IEP was proposed by BHRSD for the period 2/6/03 to 6/20/03, which Mother accepted in full. The IEP calls for a placement in a “separate small class with no more than 6-8 students, with communication and language disabilities, in the class at a time.” Exhibits P-1, S-49.
FINDINGS AND CONCLUSIONS
Student is an individual with a disability, falling within the purview of the Individuals with Disabilities Education Act (IDEA)1 and the state special education statute.2 As such, Student is entitled to a free appropriate public education (FAPE).3 Neither her status nor her entitlement is in dispute.
This dispute involves the alleged failure of BHRSD to provide Student with a placement of a separate class of 6 to 8 children, as described in Student’s IEPs. There are two IEPs that govern Student’s placement during the time period in question. Each IEP will be addressed separately below.
1. Implementation of the 8/28/02 to 6/20/03 IEP .
The classroom sought by Mother was explicitly described within the fully accepted IEP for the period 8/28/02 to 6/20/03. The Methodology/Delivery of Instruction subsection of the IEP (page 3 of 14) provides, in relevant part, for Student’s educational setting to be “a separate small class (6-8 students) with an inclusive setting for lunch, recess and specials with the support of the language class teacher and aide.” Exhibit S-5.
When BHRSD agreed to provide the services and proffered the IEP to Mother, the small separate class described in Student’s IEP did not exist. BHRSD therefore developed a language-based program to meet the needs of children diagnosed on the autism spectrum or children with social and pragmatic language disabilities. BHRSD apparently anticipated that it would have sufficient children for such a class but was only able to place four children (including Student) in the classroom. After several weeks, it became apparent that one child was inappropriately placed and was removed from the classroom, leaving a total of three children (including Student). Exhibit S-50 (March 17, 2003 affidavit of the BHRSD Director of Special Education).
Faced with its inability to find sufficient peer students to create the separate class called for by the IEP, BHRSD made its program available to out-of-district students. BHRSD solicited students from the Special Education Directors from the Lee, Lenox, Southern Berkshire, Richmond and Farmington River Regional School Districts, but without success. No additional children were identified for Student’s class. Exhibit S-50.
BHRSD does not dispute its responsibility to provide a class of 6 to 8 children pursuant to the 8/28/02 to 6/20/03 IEP. There is no doubt that it believed that it should provide such a classroom pursuant to Student’s IEP, and it made reasonable efforts to do so, but BHRSD was unable to find sufficient other children to make up a peer group of at least six children until it opened the classroom to 2 nd graders (as discussed below in part B of this Decision).
Similarly, Mother does not dispute that BHRSD made good faith efforts to find a peer group of at least 6 children for her daughter, with the result that Mother believes that it is not possible for BHRSD to create an appropriate classroom for Student. In addition, Mother agrees that an appropriate program cannot be located within a reasonable commuting distance (the parties agree that there is no such program within a one and a half hour driving distance from the school district4 ), and both parties further agree that residential placement is not appropriate for Student.
I find that BHRSD provided Student with a class of 3 children. Accordingly, BHRSD did not implement the class of 6 to 8 children described by the 8/28/02 to 6/20/03 IEP.
2. Implementation of the 2/6/03 to 6/20/03 IEP .
During the current academic year, the IEP governing Student’s placement was the fully accepted IEP for the period 8/28/02 to 6/20/03 (discussed above in part A) until a new IEP was fully accepted by Mother on February 12, 2003 (Exhibits P-1, S-49). The new IEP was for the period 2/6/03 to 6/20/03. This is the IEP currently in effect.
Although both IEPs offered a small, separate classroom for Student, the actual language used by the IEPs was somewhat different. The first IEP called for a “separate small class (6-8 students)”, while the new IEP offered a “separate small class with no more than 6-8 students, with communication and language disabilities, in the class at a time” (emphasis supplied). Once Mother accepted the new IEP on February 12, 2003, the responsibility of BHRSD changed to providing a classroom of no more than 6 to 8 children.
At some point in time (Mother believes in January 2003 but no evidence was submitted on this issue), faced with an inability to find additional children for Student’s classroom, BHRSD decided to open the classroom to children in other grades (kindergarten through 2 nd grade) who would benefit from a language-based classroom. Exhibit S-50.
The parties agree that as a result, there are currently seven children with Student in her classroom — five 1 st grade children and two 2 nd grade children. (Student is in 1 st grade.) However, there is disagreement as to whether the current arrangement satisfies the requirements contained within the IEP.
During oral argument Mother took the position that there should be a class of a consistent group of children who remain together, but that the classroom actually functions as a resource room with children coming and going to receive specific services. Mother argued that, as a result, Student continues to be isolated from other children in the delivery of her special education, and the placement called for within the IEP is not being provided.
BHRSD argues that it currently is in compliance with the IEP because it has provided Student with a class of seven children. However, BHRSD never addressed the question raised by Mother as to whether the IEP requires a class of a consistent group of children who remain together and, if so, whether this is actually being provided to Student. BHRSD’s only relevant evidence is the affidavit of its Director of Special Education, which states only that: “[c]urrently there are seven students serviced through this program” (emphasis supplied).
Neither party focused on the words used in the IEP. I find the language of the IEP (“separate small class with no more than 6-8 students, with communication and language disabilities, in the class at a time”) to be ambiguous. The word “class” would arguably support the proposition that Student’s class must be a consistent group of children who remain together in the room for the entire period of the class, while the phrase “at a time” would arguably support the proposition that the class may be a resource room where children come and go on their individual schedules in order to receive particular services or supports.
I conclude that I have not been provided sufficient argument or evidence upon which I can determine whether the IEP requires a class with a consistent group of peers all learning together or may be a classroom where children come at different times in order to receive individually-based services. Nor am I able to determine how the classroom actually functions since the parties provided argument but no relevant evidence on this point. I therefore am not able to make a finding as to whether BHRSD is in compliance with the 2/6/03 to 6/20/03 IEP. For this reason, Mother’s claim for compensatory relief fails with respect to this IEP.
C. Relief to be Provided for Failure to Implement Fully the 8/28/02 to 6/20/03 IEP .
Having concluded that BHRSD failed to implement part of the 8/28/02 to 6/20/03 IEP (discussed above in part A of this Decision), I turn to what compensation (if any) should be provided in order to make up for this failure.
The First Circuit Court of Appeals has recognized the availability of compensatory services in an appropriate case.5 A school district’s good faith (but ultimately unsuccessful) efforts do not eliminate its obligation to provide compensatory education for a failure to provide requisite services or placement.6
In some disputes, what needs to be provided through compensatory education is precisely what has not been provided – for example, it might be appropriate for a school district to pay for or provide the six sessions of missed speech-language therapy. However, in the present dispute, the educational implications of BHRSD’s failure to implement fully the IEP, and therefore the appropriate relief, are much more difficult to determine.
This is because compensatory education is essentially a remedy designed to make Student whole – that is, to make up for what was lost as a result of not having received the requisite services or placement. In order to determine what compensation is due, I must be able to determine, with some minimum degree of assurance, the implications to Student of BHRSD’s failure to implement fully the IEP – that is, what Student has lost as a result of receiving instruction within a class of 3 children, as opposed to a class of 6 to 8 children.7
Mother has not argued that her daughter did not receive the specific special education and related services called for in the relevant IEPs. Instead, Mother takes the position that a principal purpose of the separate class of 6 to 8 children is to provide Student with a sufficient group of peers – that is, a small group of children at a similar age and with similar educational needs – with whom she can learn, and that without this small class of similar children, Student cannot receive an appropriate education. For Mother, therefore, having a sufficiently large group of peers with whom Student can learn is a central and essential part of Student’s educational development. However, I may not simply assume this to be true nor would it be appropriate for me to speculate.
Rather, I must determine on the basis of the evidentiary record, for example, whether the impact of BHRSD’s failure to implement fully the IEP by providing a class of 3 children instead of a class of 6 children so significant impacted Student that it rendered her entire special education program meaningless. If so, this might require compensatory services of a half-year of an appropriate placement. Or, was the impact significant but only to certain parts of Student’s educational development – for example, learning social or behavioral cues from other children in the classroom or certain other aspects of her educational development? If so, this might be compensated for through a summer program and/or after-school program tailored to provide Student what she missed. Or, was the failure to have sufficient peers de minimus , with no significant negative impact on Student’s special education services, with the result that no compensatory education would be due?8
In her written argument, Mother appeared to address this issue indirectly by stating that “[c]urrent test scores indicate that this year’s methodology is not working well.” In support of this proposition, Mother pointed to declining test scores from neuropsychological evaluations in January 2002 and then again in November 2002. Exhibits P-3, P-4.
However, during oral argument, Mother clarified that she is not seeking to link the failure to provide a class of 6 to 8 children with her daughter’s lower test scores. She further stated that one could never know what her daughter has lost with respect to her education as a result of not having a class of 6 to 8 children.
Various written evaluations provided by Mother and BHRSD speak to the importance of Student’s having a class of 6 to 8 children. But, every evaluation relevant to this issue speaks only to the importance of having a class size that is not too large , with some of the documents recommending a class size of no more than 8 children. These evaluations emphasize that Student will not be able to learn effectively if her class includes too many other children. Exhibits P-2, P-3, P-4, P-5, S-9.
Within all of the evaluations and other evidence, I can find not a single sentence providing any guidance as to the importance of Student’s having a minimum number of children in her class. More precisely, there is no evidence to be found relevant to the possible negative implications of Student’s being denied the opportunity to learn with at least a certain number of other similarly-situated children. Simply stated, this does not appear to be an issue that has been addressed, at least in writing, by the professionals who have evaluated or worked with Student.9
Without this evidence, I am not able to determine the educational implications of BHRSD’s failure to provide the requisite placement of a class of 6 to 8 children, and therefore I simply do not know what would be necessary to make up for BHRSD’s failure to implement completely the 8/28/02 to 6/20/03 IEP. Thus, I have no basis for ordering BHRSD to provide what would normally be considered as compensatory education – for example, to provide or pay for part or all of educational services or placement in addition to those services and placement which Student is already entitled to receive prospectively pursuant to special education law and regulation.
However, the relief requested by Mother in her written submission is somewhat unusual and would not likely be burdensome to BHRSD. (During oral argument, BHRSD’s counsel stated that BHRSD is willing to provide Mother with the relief that she requested in her written submission.) Mother requested only assistance in locating an appropriate placement for Student (presumably where there is already in place a class of peers) as well as assistance in arranging for an observation of the potential placements. In light of this, I find it appropriate that Mother be provided the relief requested in her written submission.
Finally, I note the difficulties presented to both the Mother and the School District by this dispute. The School District appears to have done what it could (within the limits imposed by the small number of similarly-situated children and the lack of any out-of-district programs to consider) but the School District’s services have not been (and are not likely to be at any time in the near future) satisfactory to Mother.
Mother has explained that, in her opinion, her daughter’s educational needs can only be met by residing outside the jurisdiction of BHRSD (at least during school days) and placing her daughter into an already-established program for children with disabilities similar to Student’s. For the reasons explained above, BHRSD is not responsible to provide or pay for part or all of the expenses of such a program as compensatory education pursuant to the present dispute. Whether BHRSD could be found responsible prospectively for such a program is beyond the scope of the present dispute. But, I note that if Mother were to move to a city or town outside of the jurisdiction of BHRSD, thereby residing within a new school district, one would normally expect that responsibility for such a program would fall to the new school district.10
ORDER
I find that Berkshire Hills Regional School District (BHRSD) did not implement fully the 8/28/02 to 6/20/03 IEP because BHRSD did not provide Student with a class of six to eight children. As compensatory relief, BHRSD shall research appropriate out-of-district placements (that include a small class of children who would be appropriate peers for Student) for the 2003-2004 school year and shall assist Mother to arrange for her observation of the potential placements.
By the Hearing Officer,
William Crane
Dated: April 10, 2003
COMMONWEALTH OF MASSACHUSETTS
BUREAU OF SPECIAL EDUCATION APPEALS
EFFECT OF BUREAU DECISION AND RIGHTS OF APPEAL
Effect of the Decision
20 U.S.C. s. 1415(i)(1)(B) requires that a decision of the Bureau of Special Education Appeals be final and subject to no further agency review. Accordingly, the Bureau cannot permit motions to reconsider or to re-open a Bureau decision once it is issued. Bureau decisions are final decisions subject only to judicial review.
Except as set forth below, the final decision of the Bureau must be implemented immediately. Pursuant to M.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”. 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. Honig v. Doe , 484 U.S. 305 (1988); Doe v. Brookline , 722 F.2d 910 (1st Cir. 1983).
Compliance
A party contending that a Bureau of Special Education Appeals decision is not being implemented may file a motion with the Bureau of Special Education Appeals contending that the decision is not being implemented and setting out the areas of non-compliance. The Hearing Officer may convene a hearing at which the scope of the inquiry shall be limited to the facts on the issue of compliance, facts of such a nature as to excuse performance, and facts bearing on a remedy. Upon a finding of non-compliance, the Hearing Officer may fashion appropriate relief, including referral of the matter to the Legal Office of the Department of Education or other office for appropriate enforcement action. 603 CMR 28.08(6)(b).
Rights of Appeal
Any party aggrieved by a decision of the Bureau of Special Education Appeals may file a complaint in the state 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 to state superior court must be filed within thirty (30) days of receipt of the decision.
The federal courts have ruled that the time period for filing a judicial appeal of a Bureau decision in federal district court is also thirty (30) days of receipt of the decision, as provided in the Massachusetts Administrative Procedures Act, M.G.L. c.30A . 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.
Confidentiality
In order to preserve the confidentiality of the student 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.
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 federal law, upon receipt of a written request from any party, the Bureau of Special Education Appeals will arrange for and provide a certified written transcription of the entire proceedings by a certified court reporter, free of charge.
1
20 USC 1400 et seq .
2
MGL c. 71B.
3
33 USC 1401(8) (definition of FAPE), 1412(a)(1)(A); MGL c. 71B, ss. 1 (definition of FAPE), 2, 3.
4
The Massachusetts special education regulations preclude a student from traveling in a vehicle for more than one hour each way except with the approval of the Team. 603 CMR 28.06(8)(a).
5
Frazier v. Fairhaven Sch. Com. , 35 IDELR 271 (1 st Cir. 2002); Pihl v. Mass. Dept. of Ed. , 9 F.3d 184, 20 IDELR 668 (1 st Cir. 1993).
6
E.g., Carlisle Area Sch. Dist. v. Scott P ., 62 F.3d 520 (3 rd Cir. 1995) (bad faith not required to establish compensatory education claim).
7
E.g., Pihl v. Mass. Dept. of Ed. , 9 F.3d 184 (1 st Cir. 1993) (“compensatory education is available to remedy past deprivations” . . . The IDEA “may require services at a future time to compensate for what was lost”); Lester H. v. Gilhool, 916 F.2d 865 (3rd Cir. 1990), cert. denied 499 U.S. 923, 111 S.Ct. 317 (1991) (compensatory education is intended to be “an appropriate remedy to cure the deprivation of a child’s right to a free appropriate public education”); Miener v. State of Missouri , 800 F.2d 749 (8th Cir. 1986) (compensatory education intended to cure the deprivation of a handicapped child’s statutory rights).
8
In order to obtain compensatory services, a parent generally must show more than a de minimus failure by the School District. The Fifth Circuit Court of Appeals explained this as follows:
Therefore, we conclude that to prevail on a claim under the IDEA, a party challenging the implementation of an IEP must show more than a de minimis [sic] failure to implement all elements of that IEP, and, instead, must demonstrate that the school board or other authorities failed to implement substantial or significant provisions of the IEP. This approach affords local agencies some flexibility in implementing IEP’s, but it still holds those agencies accountable for material failures and for providing the disabled child a meaningful educational benefit.
Houston Independent School District v. Bobby R ., 200 F.3d 341 (5 th Cir. 2000).
9
I also note that notwithstanding what appear to be a decline in raw scores on Student’s independent neuropsychological evaluations (as noted in Mother’s written argument), the written evaluation reports relied on by Mother indicate significant educational gains in communication skills, daily living skills and social skills. Exhibits P-3, P-4.
10
If Mother moves to and resides within a new school district (even if she maintains her legal residence within BHRSD), the new school district presumably would bear responsibility for Student’s education, subject to any remaining fiscal responsibility of BHRSD pursuant to the Massachusetts move-in law. MGL c. 71B, s. 3, par. 1 (a city and town must “identify the school age children residing therein who have a disability, . . . propose a special education program to meet those needs, provide or arrange for the provision of such special education program) (emphasis supplied); Doe v. Anrig , 651 F. Supp. 424 (D.Mass. 1987) (word “reside” as used in the state special education statute means physical presence); In Re: Georgetown Public Schools, Beverly Public Schools, Salem Public Schools, and Massachusetts Department of Education , BSEA # 02-1798, 8 MSER 95, 99-100 (MA SEA April 5, 2002) (school district responsibility depends on actual residency rather than legal residency or domicile); In Re: Wakefield Public Schools , BSEA # 94-0744 (MA SEA October 15, 1993) (distinguishing actual residency from legal residency or domicile). The Massachusetts move-in law is discussed in In Re: Georgetown Public Schools, supra , 8 MSER at 100.