COMMONWEALTH OF MASSACHUSETTS
BUREAU OF SPECIAL EDUCATION APPEALS
IN RE: GLORIA1 v HOLYOKE PUBLIC SCHOOLS et al
BSEA #05-5493
RULING ON DOE’s MOTION FOR CLARIFICATION
This ruling is issued pursuant to the Massachusetts Department of Education’s (DOE) Motion for Clarification of the section of the Hearing Officer’s November 28, 2005 decision finding that DOE committed procedural errors that denied Gloria a FAPE and was as such, liable for compensatory education to Gloria for a period occurring between April 6, 2005 and June 10, 2005. DOE asserts that it had no notice that DOE’s McKinney-Vento dispute resolution process was an issue. Therefore DOE asserts that it was denied an opportunity to show at hearing that it had afforded Gloria and had afforded Holyoke the process that both were due under the McKinney-Vento dispute resolution procedure. DOE also asserts that it did follow the substantive requirements of the McKinney-Vento dispute resolution process; that any purported violations were only violations of DOE policy and not procedural violations of the IDEA, and even if procedural violations of the IDEA occurred, no compensatory education is owed because no substantive violations of the IDEA occurred and any denial of FAPE was solely the result of Holyoke’s actions or inactions. DOE requested that the order directing it to provide a compensatory education plan to the Educational Surrogate parent (ESP)2 be stayed and that its motion for clarification be granted.
A conference call with the ESP and Holyoke, Springfield and DOE’s Counsel occurred on December 6, 2005. Although the motion to stay was denied DOE was given the opportunity to file a plan allowing for no compensatory services until the motion for clarification was decided. DOE was also given an opportunity to further clarify its motion for clarification to include what it wished the Hearing Officer to order in the event that its motion for clarification was granted. The ESP, Holyoke and Springfield were given an opportunity to respond to the motion. December 9, 2005 was set as the date for any responses. The ESP and Springfield filed oppositions to DOE’s motion on that day. At the request of Holyoke, the December 9, 2005 date was extended to December 14, 2005 due to a snowstorm that closed school in Holyoke and many communities in the Commonwealth. The extension was allowed to all the Parties. Holyoke filed its opposition on December 14, 2005. DOE did not further clarify its motion.
After consideration of the pleadings filed by all Parties, DOE’s motion for clarification is GRANTED in part. Springfield, Holyoke and the ESP are correct in their assertion that decisions are final and are subject only to judicial review; see 20 USC s. 1415 (i) (1) (B). If a party does not agree with an issued decision, its remedy is to appeal the decision to Court within ninety days of its issuance; see BSEA Hearing Rule XIV A.; 20 U.S.C. s. 1415(i)(2)(B). A Hearing Officer may not stay a decision. A party seeking to stay a decision must seek and obtain a stay from a Court having jurisdiction over a party’s appeal; BSEA Hearing Rule XIV C. As such, to the extent that DOE wishes the Hearing Officer to reverse or otherwise change its decision finding it liable for compensatory education, such request is denied.
However, a Hearing Officer may clarify a decision in order to assist the Parties regarding their obligations in complying with a decision. In this matter it is clear that DOE does not understand how it denied Gloria a FAPE and/or why it was found to be liable for compensatory education. This must be rectified.
DOE first claims that it had no notice that its McKinney-Vento dispute resolution process was an issue and was thus denied an opportunity to argue that it had afforded both Gloria and Holyoke the process that was due under McKinney-Vento procedures. At numerous prehearing conferences and at hearing, the issues presented were whether DOE’s determination that Gloria was homeless pursuant to McKinney-Vento was correct and whether any of the Parties in this matter owe Gloria compensatory education and/or were liable for damages. DOE submitted documents that referenced its McKinney-Vento dispute procedure. Holyoke’s superintendent testified and gave documentary evidence that he did not feel that DOE was giving Holyoke a fair hearing and did not listen or look at documents it submitted in support of its position that Gloria was not Holyoke’s responsibility; see Findings 17, 18. Holyoke gave testimony that DOE did not follow McKinney-Vento procedures; see Finding 28. The Parties, all represented by more than competent counsel, were asked if they understood the issues and had indicated that they did. If DOE did not understand the issues it failed to inform the Hearing Officer as such. All were given the opportunity to submit documents and present witnesses and cross-examine witnesses. All the parties, including DOE, actively participated in this process. None of the attorneys, including DOE’s attorney, were shy about requesting clarification on numerous matters during the hearing including, but not limited to, clarification of page numbers, exhibit numbers, clarifying math mistakes made by witnesses and the scope of testimony in the hearing. DOE is a party in this matter. When one of the issues is determined to be whether any of the parties owes a student compensatory education because it denied a student a free appropriate public education (FAPE), and DOE doesn’t object or ask for clarification of the issue prior to the issuance of a decision, it should expect to present documents and witnesses to defend its position and be potentially liable for compensatory education if the facts so indicate.
DOE also maintains that it did follow the substantive requirements of the McKinney-Vento dispute resolution process by informing Holyoke in a letter on April 1, 2005 that Gloria was homeless under McKinney-Vento, had a right to attend Holyoke and therefore Holyoke had to enroll her; see (P6), Finding 17. As such, DOE maintains that any violations are only procedural violations and having committed only procedural violations under McKinney-Vento and its own policy, DOE did not deny Gloria a FAPE. It further asserts that any denial of FAPE to Gloria was only Holyoke’s actions or inactions and not DOE’s.
DOE is correct that if the violations were strictly procedural, no compensatory education would be found. A Hearing Officer must find that procedural violations impeded a child’s right to receive a free appropriate public education, significantly impacted the parent’s opportunity to participate in the decision making process regarding the provision of a free appropriate education to the child, or that the procedural violation caused a deprivation of educational benefits; see 20 U.S.C. 1400 s. 615(f)(3)(E) (ii). DOE is also correct that Holyoke denied Gloria a FAPE. However just as Holyoke is not relieved of its responsibility to provide a FAPE to Gloria because of the mistakes of DSS, Springfield and DOE, DOE is not relived of its responsibilities because Holyoke provided either no education or inappropriate special education services to Gloria.
The Massachusetts Department of Education as a state educational agency (SEA) has primary responsibility for the state supervision of public elementary and secondary schools in the Commonwealth. For eligible students with disabilities, DOE is responsible for ensuring that the requirements of the IDEA are met and that children with disabilities and their parents (or surrogate parents), and are guaranteed procedural safeguards with respect to the provision of a free appropriate public education; see 20 USC s. 1412 (a) (11).
Courts have held that SEA’s responsibility to ensure that local education agency’s (LEA) meet the requirements of the IDEA means that SEA’s have responsibility to ensure that an LEA actually provides FAPE to a student and that it may be held responsible for providing needed special education services to a student if there is no LEA available, able or willing to do so; see Honig v Doe, 484 U.S. 305, 329 (1988) (SEA ordered to provide services directly to student when the LEA refused to do so). If an LEA significantly breaches a student’s right to a FAPE, and where the SEA has had adequate notice of an LEA’s noncompliance and a reasonable opportunity to compel the LEA to comply, an SEA may be responsible to provide direct services to a student; see Doe by Gonzales v Maher, 793 F. 2d 1470, 1492 (9 th Cir. 1986).
This is such a case. On March 30, 2005 DOE received a complaint from DSS that Gloria was not enrolled in any school program, that prior to Holyoke removing her from school, it had placed her in a program that did not correspond to her accepted IEP and received allegations that Gloria was receiving frequent suspensions in that program. DOE called Holyoke the next day and on April 1, 2005 told Holyoke that Gloria had a right to attend Holyoke and to enroll her. However, it knew that Holyoke’s Superintendent strongly disagreed with the decision, did not feel he was being heard, did not inform Holyoke of its rights pursuant to McKinney-Vento to present evidence in support of its position and did not explain to Holyoke its obligation to keep Gloria in Holyoke pending a Commissioner review. DOE also did not investigate the claim that Gloria was put in a program that did not conform with her IEP. As such Holyoke did not have an opportunity to immediately present the evidence it felt supported Holyoke’s position and Gloria was not immediately returned to her last agreed upon placement. Holyoke’s recalcitrance in complying with DOE’s decision was exacerbated by DOE’s failure to consider its position. The issue is not that Holyoke did not ultimately prevail. It is that Holyoke had a valid claim that Gloria was in a foster home for an extended period and was not homeless and was entitled to have its position considered.
On April 11, 2005 DOE became further aware that Holyoke was unwilling to comply with its directive when it was told by Holyoke’s Superintendent that he would enroll Gloria “under protest”. On April 29, 2005 DOE was again informed by DSS that Gloria was still out of school and that Holyoke would not agree to place Gloria in her last accepted placement on her IEP, that she would be placed alone in a room and would have to earn her way into a classroom and that she should not be in Holyoke because she was not a resident there. DOE investigated the second complaint3 but did nothing to ensure that Gloria was receiving the services she was entitled to pursuant to her IEP. As such the former ESP had to file an emergency hearing request with the BSEA on May 27, 2005. Gloria was replaced in her last agreed upon placement by BSEA order on June 10, 2005; however DOE did not issue a formal assignment of Holyoke as Gloria’s school district until June 17, 2005. These violations were not technical. DOE repeatedly knew that Holyoke did not feel it had to provide special education services to Gloria, knew that it didn’t provide appropriate services to Gloria and did not ensure that Holyoke provided a FAPE as required to pursuant to McKinney-Vento or through its own complaint resolution system as asked to do by DSS. Compensatory education is appropriate where as here procedural violations have compromised a student’s procedural rights to an appropriate education …or caused a deprivation of educational benefits”, see Roland M. v Concord Public Schools , 910 F. 2d at 994 (1 st Cir. 1990). Thus, compensatory education is appropriate.4
Holyoke is reconvening Gloria’s TEAM on January 4, 2006 at 9:00 a.m. to review her IEP, discuss the psychiatric evaluation forwarded by DSS, discuss placement issues and discuss and devise a compensatory service plan for Gloria.5 Gloria needs the participation of her ESP, Holyoke, Springfield, DSS and DOE to develop an appropriate special educational plan for her. It is the Hearing Officer’s hope that all attend.
By the Hearing Officer,
________________________
Joan D. Beron
Dated: December 16, 2005
1
Gloria is a pseudonym used for confidentiality and classification purposes.
2
The plan was to be filed with the ESP with a copy to the Parties not the Hearing Officer. As indicated at hearing, any findings of compensatory education or damages would be for exhaustion purposes that the ESP may use in a Section 1983 or other proceeding. No specific award for compensatory relief was made by the Hearing Officer.
3
DOE did not investigate the first complaint filed on March 30, 2005.
4
The findings were also made for all Parties for exhaustion purposes regarding damage claims pursuant to Frazier v Fairhaven School Committee, 276 F. 3d 52 (1 st Cir. 2002). The Hearing Officer has no authority to award damages. In this decision DOE was found responsible to submit a compensatory services plan for procedural violations of FAPE that caused substantive harm to this student.
5
Holyoke was ordered in the decision to submit a status report regarding a date for reconvening the TEAM. Holyoke and the ESP filed a joint status report on November 14, 2005. The status report also indicates that Holyoke has sought but has not been able to obtain consent from DSS to conduct a full psychiatric, psycho-pharmological evaluation. This should be discussed with DSS and the other participants at the TEAM meeting.