COMMONWEALTH OF MASSACHUSETTS
DIVISION OF ADMINISTRATIVE LAW APPEALS
BUREAU OF SPECIAL EDUCATION APPEALS
In Re: North Attleboro Public Schools v. Student
RULING ON NORTH ATTLEBORO’S MOTION TO ORDER COMPLIANCE WITH DECISION
On September 8, 2023, the BSEA issued a Decision in the above-referenced matter. The Decision held that Student required participation in an out-of-district public or private special education school that could appropriately address his academic, language-based, health and emotional disabilities. Specifically, the Decision found that Student requires participation in “a small language-based program with a cohort of students with similar profiles, in which interventions are consistently implemented across settings throughout the school day.”
Two orders were entered as part of said Decision. First, as North Attleboro Public Schools’ IEP and proposed placement, as amended to reflect a public or private out-of-district special education school, was appropriate to provide Student with a FAPE, North Attleboro was ordered to proceed with immediate identification of available appropriate out-of-district placements and send referral packets. Second, in light of Parent’s position that Student attend an out-of-district placement that could meet his needs consistent with the Student’s private evaluator’s recommendations, Parent was ordered to consent to the release of referral packets to potential public and private special education placements in order that Student could receive a FAPE.
On September 19, 2023, North Attleboro Public Schools (North Attleboro or District) filed a Motion to Order Compliance With the Decision (Motion) consistent with Rule XIV of the Hearing Rules for Special Education Appeals.
On September 27, 2023, Parent responded to North Attleboro’s Motion, requesting that the District’s Motion be dismissed on the basis that Student does not require a therapeutic placement, as he does not present as a student with social/ emotional disabilities, but rather presents with language-based deficits, and “all language-based placements are currently full and or do not allow dual enrollment”.
Neither Party requested a Hearing on the Motion.
According to North Attleboro, upon receiving the Decision in this matter, the Director of Student Services began researching possible schools/ programs that met the criteria described in the Decision, and created a list of schools that offered the types of interventions ordered for Student.
On September 15, 2023, the District forwarded a consent to Parent, listing 11 schools for which the District sought parental consent to forward packets. These schools were: The Learning Prep School, Willow Hill School, Arlington School, Clearway School, Dearborn Academy, Chamberlain School, Farr Academy, The Gifford School, Granite Academy, the Victor School and Pathways Academy at McLean Hospital.
Later in the afternoon of September 15, 2023, Parent wrote to North Attleboro noting that
…the document …does not legally comply with the issued order per the BSEA on 9/8/2023. In noting the district is aware all three placements have been transparent in either paper form and or correspondence with the North Attleboro Special Educational Director clearly stating they are unable to meet the needs of student …. The three placements were previously (The Learning Prep School, Willow Hill School and South Shore Collaborative.) Noting the placements were previously chosen by Special Education Director Margaret Camire. Please see the written order and previous Educational Evaluator’s recommendation and follow back up with a list of Language Based Placement the district believes are able to meet [Student’s] needs per the BSEA order.
North Attleboro’s Director of Student Services removed Learning Prep and Willow Hill from the list and resent the consent form to Parent.
Additional emails were exchanged between the District and Parent, in which Parent stressed the need for the District to identify language-based placements for Student, it being Parent’s contention that the remaining placements identified on the list did not offer language-based programs. Parent refused to provide consent for referral packets to be sent until programs that met Student’s disabilities, consistent with the Decision, were listed. Parent’s position continued to be that Student does not need a therapeutic placement because he does not present with social/emotional deficits.
The District has offered Student participation in North Attleboro Public Schools’ program/ placement, consistent with the September 26, 2022 to September 2023 stay-put IEP. Parent has refused these services, demanding instead Student’s participation in a full-inclusion program at the North Attleboro High School until a language-based program on which both parties agree is available.
Generally, BSEA decisions are the final agency decisions. Consistent with 603 CMR 28.08(6), once issued, the “decision of the hearing officer… shall be implemented immediately and shall not be subject to reconsideration by the [BSEA] or the Department [of Elementary and Secondary Education], but may be appealed to a court of competent jurisdiction”.
Massachusetts Special Education Regulations at 603 CMR 28.08(6)(b), and Rule XIV of the Hearing Rules for Special Education Appeals, address the parties’ right to request compliance with a BSEA decision at the administrative level. The pertinent section provides that,
A party contending that the Hearing Officer’s decision is not being implemented may file a motion requesting the BSEA to order compliance with the decision. The motion shall set out the specific areas of alleged non-compliance.
Rule XIV goes on to state that,
Upon a finding of non-compliance, the Hearing Officer may fashion appropriate relief and/or refer the matter to the Legal Office of the Commonwealth of Massachusetts Department of Elementary and Secondary Education for enforcement.
The type of compliance a BSEA Hearing Officer may order must fall within its jurisdictional authority. In the instant case, referral to the Massachusetts Department of Elementary and Secondary Education would not be appropriate, as the issue raised herein does not involve compliance by a District with the IDEA. To the contrary, here, the District is attempting to comply with what it was ordered to do in the Decision, and the non-compliance finding sought is against Parent; that is, the District contends that Parent is not cooperating with the referral process and is impeding implementation of the stay-put IEP.
I find that to the extent that any of the placements identified by the District do not comport with the terms of the Decision, which called for a focus primarily on language-based programming, Parent need not consent. However, there are a limited number of possible out of district language-based programs in Massachusetts which would be appropriate for Student and, as noted in the Decision, three of them initially found Student to be appropriate, but they did not offer him placement after speaking with Parent.
The District has few options left at this point: 1) it may forward packets to appropriate schools redacted of all personally identifiable information, thus allowing the placements to ascertain if Student is or is not appropriate for their programs; 2) it may create a revised list of schools and seek parental consent for referral to such programs; 3) it may attempt to revive the referrals to the three language-based schools initially identified (Learning Prep, Willow Hill, South Shore Collaborative); or, it may proceed to a court with pertinent jurisdiction to enforce the terms of the Decision. While the Parent has failed to comply with the letter of the Decision, the BSEA can offer no other relief at this juncture, as it lacks the authority to compel a Parent to consent to the referral process.
In order for the District to have fulfilled its obligation pursuant to the Decision, it must, as it has clearly attempted to so do, send packets to primarily language-based, public or private out-of-district placements. Said packets, however, may or may not (contingent upon Parent’s consent) contain Student’s personally identifiable information. If and when one of those placements indicates Student’s appropriateness for the program and/or a willingness to accept him, the District will have fully complied with the Decision.
With respect to Student’s stay-put placement, the Decision addressed this issue in response to Parent’s numerous inquiries. The Decision determined that the IEP covering the period from September 2022 to September 2023, portions of which were accepted by Parent on November 22, 2022 (SE-3), constitutes Student’s stay-put IEP and placement. As noted in the Decision, despite her opinion that the IEP fell short of what constituted FAPE for Student, Parent wrote on the IEP that she “authorized the school to implement the proposed IEP” with caveats. As described in the Decision, this constitutes Student’s stay-put program/ placement, and it is what North Attleboro is responsible to offer Student unless Parent elects to withdraw Student from special education altogether. As long as the District continues to offer Student his stay-put placement services consistent with the Decision, it will have complied with the Decision.
So Ordered by the Hearing Officer,
Rosa I. Figueroa
Rosa I. Figueroa
Dated: October 19, 2023
 While these schools initially found Student to be appropriate for their programs, they did not offer him placement after speaking with Parent.
 Rule XIV allows a hearing on the motion, “The Hearing officer may convene a hearing on the motion at which the scope of inquiry will be limited to facts bearing on the issue of compliance, facts of such nature to excuse performance, and facts bearing on a remedy.” However, in the instant matter neither party has requested such hearing, and because neither testimony nor oral argument would advance the Hearing Officer’s understanding of the issues involved, this Ruling is issued without a hearing, pursuant to Bureau of Special Education Appeals Hearing RuleVII(D).
 The caveats involved Parent’s request that history and science be taught in a substantially separate setting, that counseling be removed and acceptance of the rest of the services appearing in the Service Delivery Grid and specifically those appearing in Grid C (i.e., academic support, ELA, mathematics, phonetic-based reading and speech and language).