COMMONWEALTH OF MASSACHUSETTS
DIVISION OF ADMINISTRATIVE LAW APPEALS
BUREAU OF SPECIAL EDUCATION APPEALS
In Re: North Attleboro Public Schools v. Student
This decision is issued pursuant to the Individuals with Disabilities Education Act (20 USC 1400 et seq.), Section 504 of the Rehabilitation Act of 1973 (29 USC 794), the state special education law (MGL ch. 71B), the state Administrative Procedure Act (MGL ch. 30A), and the regulations promulgated under these statutes.
On July 13, 2023, the BSEA received North Attleboro Public Schools (North Attleboro or District) Hearing Request in the instant matter. The case was administratively reassigned to this Hearing Officer on August 18, 2023. On July 25, 2023, Parent requested and was granted a public hearing. However, when Parent failed to attend the Hearing and sign the necessary releases required by the BSEA as a pre-condition to holding public hearings, the Hearing was closed to the public.
On July 27, 2023, North Attleboro Public Schools withdrew all of the claims in its initial Hearing Request except for one issue (placement). The Hearing was held in person on August 3, 2023, at the Offices of DALA/BSEA, 14 Summer St. Malden, Massachusetts, before Hearing Officer Rosa Figueroa. Those present for all or part of the proceedings were:
Katie Meinelt, Esq. Attorney for North Attleboro Public Schools
Margaret Camire Director of Pupil Services, North Attleboro Public Schools
Arlene R. Boyer Stenographer, Veritext
The official record of the Hearing consists of documents submitted by Parent marked as exhibits PE-1 to PE-10, and documents submitted by North Attleboro marked as exhibits SE-1 through SE-18, recorded oral testimony, and written closing arguments. The Parties requested two postponements for submission of written closing argument; the District requested one on August 4, 2023, and Parent requested one August 25, 2023. These requests were granted via separate Orders. The record closed on September 5, 2020, upon receipt of the Parties’ written closing arguments.
ISSUES FOR HEARING:
- Whether the most recently proposed IEP issued by North Attleboro Public Schools, placing Student in an private or public out-of-district placement provides Student with a free and appropriate public education (FAPE)?
POSITIONS OF THE PARTIES:
North Attleboro Public Schools’ Position:
The District seeks an Order that its’ most recent offer to place Student in a private or public out of district placement offers Student a FAPE, consistent with the IEP proposed by North Attleboro on June 14, 2023 (SE-1), covering the period from April 26, 2023 to April 25, 2024. Specifically, North Attleboro proposes placements such as Willow Hill, Learning Prep School (LPS), South Shore Educational Collaborative or a similar, Massachusetts Department of Elementary and Secondary Education approved school.
The District asserts that it has attempted to work with Parent in an effort to resolve their dispute regarding Student’s placement and significant school absenteeism. In June of 2023, North Attleboro offered the precise placement mentioned in a Request for Hearing Parent had filed with the BSEA in March, 2023, among other options. (Parent’s March 2023 hearing request included the issue of placement and specifically mentioned LPS.) According to North Attleboro, after expending an enormous amount of time, energy, and resources all of its efforts were and continue to be frustrated by Parent’s actions and her continuous shifting of positions. Thus, North Attleboro contends it has been left with no other option but to seek a determination from the BSEA regarding the appropriateness of its proposed out-of-district placement.
The District asserts that Parent had acted in bad faith and has made frivolous claims in this and her previous case of March 2023.
Parent generally disputes the District’s contentions and asserts that there is a difference of opinion regarding Student’s stay-put IEP for which she seeks clarification. According to Parent, Student’s stay-put IEP is the one covering the period from December 14, 2021, to December 13, 2022, noting that North Attleboro has been out of compliance with this IEP throughout the 2022-2023 school year.
Parent asserts that Student is not making effective progress in North Attleboro and agrees that he requires an out of district placement. She, however, disagrees that a “predetermined placement” will address Student’s current needs, noting that Cathy Mason, an educator whom she privately retained, never recommended Learning Prep specifically.
Parent denies any willful or frivolous wrongdoing on her part.
FINDINGS OF FACT:
CONCLUSIONS OF LAW:
Pursuant to federal and state special education laws and regulations, and consistent with Endrew F. v. Douglas County School District, 137 S.Ct. 988 (2017) school districts are required to offer eligible students an individualized education program and placement reasonably calculated to provide the eligible student a free and appropriate public education (FAPE) that enables the student to derive meaningful educational benefit in light of the student’s circumstances. See D.B. Esposito, 675 F.3d 26,38 (1st Cir. 2012). Said special education and services must also be offered in the least restrictive environment appropriate to meet the student’s needs.
In the instant matter, pursuant to 603 CMR 28.07(1)(b), North Attleboro seeks a determination that its proposal for an out-of-district public or private special education school placement will provide Student with a FAPE.
Upon consideration of the evidence, the applicable legal standards and the arguments offered by the Parties, I find that North Attleboro has met its burden of persuasion to show that Student requires an out-of-district private or public special education placement in order to appropriately address his academic, language-based, health and emotional disabilities and to receive a FAPE. In rendering my decision, I rely on the facts recited in the Facts section of this decision and incorporate them by reference to avoid restating them except where necessary.
The evidence shows that in order to make effective progress, Student requires 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 (Camire). Indeed, Parent notes in her closing argument, that Student requires an out-of-district placement and a different approach to learning. Her closing argument further asserts that Student is not making effective progress in North Attleboro. Furthermore, only two months before the instant matter was filed, Parent was herself seeking an out-of-district placement for Student.
As reflected in the record, Parent’s statements regarding the placement she seeks, to wit: a “full inclusion, out-of-district private language-based program” are confusing, internally inconsistent, and contradictory.
603 CMR 28.01(14) defines out-of-district program as a
…special education program located in a building or facility outside of the general education environment that provides educational services primarily to students with disabilities and shall include all programs approved under 603 CMR 28.09. Such program may be operated by a private organization or individual, a public school district, or a collaborative.
There is no such thing as a “full inclusion, out-of-district private language-based program”, it is one or the other. By definition, a full inclusion special education program can only be offered in a public-school setting. A program that is out of district cannot be full inclusion. Out-of-district, language-based programs offer special education in a more restrictive setting than inclusion programs provided in a public-school setting, as the former generally removes a student to a smaller setting in which all participants present with similar deficits.
A partial inclusion program may be offered in a public-school setting, by allowing a student to participate in general education to the extent possible and receive pull out special education services in his/her areas of weakness. Likewise, separate language-based programing may be offered in a public school, but this kind of programming usually requires participation in a substantially-separate setting, while allowing the student to partake in some limited inclusion.
Again, Parent cannot have it both ways; Student is either placed in a full or partial inclusion program in North Attleboro Public Schools, a separate program in a public-school setting, or he is placed in an out-of-district private or public special education day program outside North Attleboro. Here, Parent has the option of accepting one of these options, or she may withdraw Student from North Attleboro and pursue an alternative placement on her own at her own expense.
Next, I address Parent’s concerns regarding the stay-put IEP. Here I note that most of Parent’s efforts in this matter were directed at identification of the stay-put IEP rather than the placement issue. I further note that Parent was advised on several occasions that the central issue in the instant matter was placement.
Federal and Massachusetts special education laws and the applicable regulations provide that students are entitled to remain in their then-current educational program and placement during the pendency of any dispute unless the parents and the school district agree otherwise. 20 USC § 1415(j); 34 CFR 300.518(a); G.L. c. 71B §3; 603 CMR 28.08(7).
Stay-put rights are intended to maintain a student’s educational placement during the pendency of an IDEA appeal, so as to avoid unnecessary disruptions to the student’s life. As such, “current educational placement” is equivalent to “the operative placement actually functioning at the time the dispute first arises.” L.Y. ex rel. J.Y. v. Bayonne Bd. of Educ., 384 Fed. Appx. 58, 61, 20110 WL 2340176, *2 (3rd Cir. 2010) (quoting Thomas v. Cincinnati Bd. of Educ., 918 F.2d 618, 625-26 (6th Cir) (1990).
A student’s placement is typically predicated upon the accepted IEP, the document which dictates the school district’s responsibility toward a resident student. In determining the program and placement to which a student is entitled during the pendency of a proceeding the applicable laws and regulations require that one looks to the last agreed upon IEP. This requires close examination of the documents, circumstances and particular facts surrounding the program and placement to which the student is entitled during the pendency of the dispute between the parties. See Hale v. Poplar Bluff R-1 School District, 280 F.3d 831 (8th Circ. 2002) (requiring that the fact finder look at the specific facts of the case to examine the impact that educational changes may have on the student).
Guidance for determining educational placement for purposes of stay-put can be found in Court decisions which have interpreted stay-put to mean the specific services that the student is currently receiving under the IEP. See K.D. v. Dep’t of Educ., State of Hawaii, 58 IDELR 2 (9th Circ. 2009) (noting that a district can make changes to a program so long as the student’s educational program is not significantly impacted).
In the instant matter, the evidence shows that following a Team meeting on September 26, 2022, North Attleboro proposed an IEP covering the period from September 26, 2022, to September 25, 2023. Parent accepted a portion of this IEP on November 22, 2022 (SE-3). Parent’s IEP response letter stated in pertinent part that while she rejected the IEP and placement as “insufficient and inappropriate” until the dispute was resolved, she “authorize[d] the school to implement the proposed IEP”, with the additional caveats regarding the Service Delivery Grid, to wit: 1) that history and science continue to be taught in the substantially separate classroom; 2) that no counseling services be provided; 3) that Goal 5, addressing executive functioning, be implemented in all subjects; and 4) that C Grid services for Academic Support, ELA, Mathematics, Phonetic-Based Reading, and Speech and Language were accepted (SE-3). Once Parent authorized implementation of the proposed IEP, together with the additional requirement that she was invoking stay-put for provision of substantially separate instruction for science and history, acceptance of C Grid services for Academic Support, ELA, Mathematics, Phonetic-Based Reading, and Speech and Language and rejection of counseling services, this became Student’s stay-put services and dictated North Attleboro’s responsibilities toward him during the pendency of the dispute. Parent’s argument to the contrary is unpersuasive.
Lastly, there are two issues that warrant comment. Student’s absenteeism and Parent’s conduct and failure to appear at the Hearing,
First, I find Student’s absenteeism to be extremely concerning. The longer Student stays out of school, the greater the challenges he will have to overcome when he ultimately returns. Sadly, the evidence shows that during the 2022-2023 school year his absenteeism was caused by Parent’s decision to allow Student to be absent from school for over 60 days. Student is in high school and his entitlement to special education and related services will cease in a few years. By then, he will need to have mastered the skills that will enable him to effectively manage his deficits so as to succeed in life. Every day that he is deprived of participation in an educational program sets him back. It is imperative that Student attend school and receive his stay-put services until an out-of-district placement is secured for him.
Thus, until such time as an appropriate out-of-district placement is identified, Student shall continue to participate in his educational program in North Attleboro consistent with his stay-put IEP services.
I now turn to Parent’s conduct. Despite this Hearing Officer’s encouragement and attempts to engage so as to have Parent and Student participate in the Pre-hearing Conference and the Hearing, Parent ultimately decided not to attend. She thus deprived herself of the opportunity to fully argue and address her concerns for Student in the due process forum. Moreover, Parent’s indecisiveness, lack of clarity and argumentative style throughout this process has made it difficult for the Parties to engage in collaborative discussions, and has caused the process to be unnecessarily delayed. Even while stating that she supports an out-of-district placement for Student, Parent continues to question every detail of statements made by the District about these placements and the placement process, despite said statements being clear and unambiguous. Every question answered is met with another question, in an endless back and forth that yields no resolution. Parent appears to argue for the sake of arguing, even when the District acquiesces to her requests. Her investment in arguing appears to have made her lose sight of what actually benefits Student. It is clear that she needs assistance in order to move forward. As such, in the hopes of improving communication going forward, I strongly encourage the Parties to participate in facilitated IEP meetings.
- North Attleboro’s IEP and proposed placement, amended to reflect a public or private out-of-district special education school, is appropriate and necessary in order to provide Student with a FAPE. The District shall immediately proceed with identification of available, appropriate out-of-district placements and referral of Student to same.
- Parent is ordered to forthwith consent to the release of referral packets to potential public and private special education placements in order that Student may be provided a FAPE.
By the Hearing Officer,
Rosa I. Figueroa
Dated: September 8, 2023
September 8, 2023
COMMONWEALTH OF MASSACHUSETTS
DIVISION OF ADMINISTRATIVE LAW APPEALS
BUREAU OF SPECIAL EDUCATION APPEALS
NORTH ATTLEBORO PUBLIC SCHOOLS
BSEA # 2400326
ROSA I. FIGUEROA
KATIE MEINELT, ESQ., ATTORNEY FOR
NORTH ATTLEBORO PUBLIC SCHOOLS
 I note that between July 24 and September 5, 2023, Parent filed numerous motions and requests, even after the Parties were informed that no additional motions, requests or email communications would be entertained. I further note that Parent missed some of the deadlines established by the Hearing Officer to file her submission such as filing a revised requests for subpoenas and other submissions as reflected in the administrative record.
 Only one member of the public intended to be in attendance but was excluded when Parent did not appear.
 The District objected to introduction of Parent’s exhibits 5, 6, 7 ,8 and 10 on the basis that the documents submitted did not represent the entire email trail. The documents were admitted in evidence over the District’s objection with the clarification that do not provide a complete and accurate representation of the totality of the exchange thus impacting the weight given to the documents.
 At the request for the District, the matter was further postponed through August 7, 2023, for submission of this exhibit.
 This exhibit from Parent did not include the entire report, but rather the first 7 pages. Specifically, the summary/implications portion of the report as well as the signature page were missing.
 According to Parent, the stay-put IEP is the one covering the period from December 2019 to December 2020, per PE-1, which exhibit does not contain the entire IEP, but rather the signature page only.
 At the time of the Settlement Conference both Parties were represented by counsel, but Parent’s counsel withdrew her representation shortly thereafter. According to North Attleboro, Parent has been represented by three attorneys and an advocate in the past year and a half.
 In late July and in August of 2023, Parent made the same statement when seeking a postponement of the Hearing and as one of the reasons for her to ultimately decide not to attend the Hearing.
 20 USC §1401 et seq.; M.G.L. c.71B; 34 CFR 300 et seq.; 603 CMR 28.00 et seq.
 34 CFR 300.300(3)(ii).
 The determination of whether a student is deriving meaningful educational benefit from his program and placement must be determined in the context of the student’s particular circumstances and potential to learn. Endrew F. v. Douglas County School District, 137 S.Ct. 988, 580 U.S. (2017).
 34 CFR 300.114(a)(2)(i) and (ii).
 603 CMR 28.07(1)(b) states that,
If, subsequent to initial evaluation and initial placement and after following the procedures required by 603 CMR 28.00, the school district is unable to obtain parental consent to a reevaluation or to placement in a special education program subsequent to the initial placement, or the parent revokes consent to such reevaluation or placement, the school district shall consider with the parent whether such action will result in the denial of a free appropriate public education to the student. If after consideration, the school district determines that the parent’s failure or refusal to consent will result in a denial of a free appropriate public education to the student, it shall seek resolution of the dispute through the procedures provided in 603 CMR 28.08. Participation by the parent in such consideration shall be voluntary and the failure or refusal of the parent to participate shall not preclude the school district from taking appropriate action pursuant to 603 CMR 28.08 to resolve the dispute….
 North Attleboro is persuasive that Student may receive a FAPE in a public or private, special education day school that can support his educational needs, SE-1, the IEP calling for out-of-district placement, identifies only “private” not public or private day schools, and does not clarify that both options are being explored. The IEP shall be amended to correctly portray the options explored by the District until a specific public or private, special education school, appropriate to meet Student’s needs is identified.
 See Shaffer v. Weast, 546 U.S. 49 (2005). To the extent that Parent did not participate in the Hearing and did not present any testimonial evidence, her arguments did not carry the same weight as the School’s case.
 Such lack of progress was, to a great extent, owing to absenteeism (SE-17).
 Exceptions to stay-put which relate to violations to the code of conduct are not applicable in this matter.
 At the time of Parent’s response to this IEP, she was represented by counsel.