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In Re: Student v. Beverly Public School District and Seven Hills Foundation – Crotched Mountain School BSEA# 25-05351  

COMMONWEALTH OF MASSACHUSETTS

DIVISION OF ADMINISTRATIVE LAW APPEALS

BUREAU OF SPECIAL EDUCATION APPEALS

In Re: Student v. Beverly Public School District and Seven Hills Foundation – Crotched Mountain School                       

BSEA# 25-05351                                                                                                

RULING ON PARENT’S EMERGENCY MOTION FOR STAY-PUT PLACEMENT,

BEVERLY PUBLIC SCHOOLS’ PARTIAL OBJECTION TO ACCELERATED STATUS,

AND

SEVEN HILLS FOUNDATION-CROTCHED MOUNTAIN SCHOOL’S MOTION TO DISMISS

This matter comes before the Hearing Officer on the November 26, 2024, Parent’s Emergency Motion for Stay-Put Placement[1] (Motion for Stay-Put) seeking an order that during the pendency of the current Appeal, Seven Hills Foundation-Crotched Mountain School (“Seven Hills”) is Student’s stay-put placement.

On December 5, 2024, Beverly Public Schools (Beverly or the District) filed Beverly Public Schools’ Partial Objection To Accelerated Status To The Parents’ Request For Hearing And Motion For ‘Stay Put’[2] (District’s Objection), asserting that the issues identified in Parent’s Hearing Request “must be bifurcated from the ‘stay put’ issue…. The District’s defense will be severely prejudiced if forced to proceed on an accelerated hearing for the Parent’s standard FAPE claims. To do so would not only prejudice the District but would be contrary to the clear and unambiguous requirements of the Bureau’s own hearing rules which require bifurcation of ‘the remaining issues.’”

On December 5, 2024, Seven Hills submitted via email that Seven Hills “agrees that there should be a bifurcation of the Stay Put claim (which is appropriate for accelerated status) and the remaining claims (which are not) and requests the removal of those latter claims from the accelerated track.”

On the same date, via email, Parent responded, in part, that “orders should be issued at [an] accelerated hearing to ensure that the EVALUATION and TEAM PROCESS, which has been ignored by the District and Seven Hills, immediately occurs… for safety reasons, beyond just traditional educational FAPE.”

Also on December 5, 2024, Seven Hills filed Seven Hills Foundation-Crotched Mountain School’s Opposition to Emergency Motion for Stay Put[3] (Seven Hills Response), asserting, in part, that Stay-put does not apply to situations in which a private school has lawfully terminated a student on the basis of health and safety, pursuant to Massachusetts law, that the BSEA decisions on which Parent relies have no precedential value, and that these decisions “trump and effectively render void lawfully-promulgated DESE termination regulations, an act which the BSEA simply has no power to do.” Seven Hills further argues that

“[p]erhaps Student can receive the array of services contained in the last-signed IEP at home with in-person or virtual tutoring, or in-district somewhere in Beverly while a longer-term successor placement is located and secured. Stay-put should not be automatically [sic] be assumed to be school-specific. After all, the obligation to provide FAPE rests with the district, and the private schools like [Seven Hills] are effectively third-party vendors, contracted to provide those special education and related services. Thus, [Seven Hills] needs to be allowed to terminate when it sees fit, as long as it follows the termination regulations, and if it is possible for the district to provide the student with the array of services laid out in his IEP in some other setting, that should be the default.”

Seven Hills also filed a Motion to Dismiss, assertingthat “the BSEA lacks jurisdiction and enforcement power over [Seven Hills], given that it is an out-of-state private school located in New Hampshire….[I]t is a private school located in New Hampshire, beyond the jurisdiction and enforcement power of the BSEA.”

Parent responded via email on December 5, 2024, challenging Seven Hills’ position and stating, in part, that Seven Hills has accepted “DESE c. 766 approval status,” and it has “voluntarily enter[ed] into special education placement agreements with [Massachusetts] school districts for [Massachusetts] special [education] students, and Seven Hills [has relied] on [Massachusetts] termination provisions/regulations in terminating this student.”

The parties did not request a hearing on the Motions, and I find that a hearing is not needed because it would not likely advance my understanding of the issues.[4]

For the reasons set forth below, Seven Hills’ Motion to Dismiss is hereby DENIED. Parent’s Motion for Stay-Put is hereby ALLOWED. Beverly Public Schools’ Partial Objection To Accelerated Status is hereby ALLOWED.  

ISSUES:

  1. Whether the BSEA has jurisdiction over Seven Hills, a private out-of-state school?
  2. Whether, during the pendency of the current Appeal, Seven Hills is Student’s stay-put placement? 
  3. Whether issues unrelated to stay-put and identified in Parent’s Hearing Request should be removed from the accelerated track?

FACTUAL FINDINGS AND RELEVANT PROCEDURAL HISTORY:

These findings are made for the purposes of this Ruling only and are subject to change in future rulings/Decision:

  1. Student is a 14-year-old seventh grade resident of Beverly, Massachusetts. Until recently, Student attended Seven Hills, located in New Hampshire.
  2. Seven Hills provides special education and related services for students aged 5-21 who are on the autism spectrum and/or have disabilities and other challenges. It is licensed by the New Hampshire Department of Education (“NHDOE”) and the New Hampshire Child Care Licensing Unit (“CCLU”). It is not licensed by the Massachusetts equivalent agencies, DESE and the Massachusetts Department of Early Education and Care (“DEEC”). Seven Hills obtained “limited approval” from the Massachusetts Department of Elementary and Secondary Education (“DESE”) to provide services to Massachusetts students, pursuant to 603 CMR 28.09(1)(a), and it is listed as an “Approved Out-of-State School.” Consequently, the Massachusetts Operational Services Division (“OSD”) has authorized an “approved rate” for the school. Seven Hills is subject to the government oversight of New Hampshire.
  3. Student is eligible for special education under the Disability categories Autism and Emotional. He has documented diagnoses of Autism Spectrum Disorder, Attention Deficit Disorder- Combined Type, Attention Deficit Hyperactivity Disorder, Unspecified Anxiety Disorder, and Tic Disorder of Childhood. He is also diagnosed with leukoencephalopathy brain lesions that impact the transmission of messages in his brain.
  4. Student began attending Seven Hills in September 2023 following a referral from Beverly Public Schools (Beverly or the District) for “treatment of behavioral difficulties.” At that time, Student presented as emotionally reactive and quick to anger. He had a history of intrusive thoughts about hurting his family members and threatening to kill peers.
  5. Since the Student’s enrollment at Seven Hills there have been approximately 174 incident reports involving the Student. Approximately 157 incidents have occurred in the past 12 months; 88 incidents have occurred in the last incident 6 months. Student’s maladaptive behaviors include aggression, self-injurious behavior, property destruction, and noncompliance/refusal. Both staff and other students have sustained injuries as a result of the Student’s challenging behavior. The Student is also reported to engage in highly concerning homicidal and suicidal ideation.
  6. On March 7, 2024, Student’s Team reconvened. Based on a review of Student’s three-year reevaluation results, current performance levels, teacher and staff report, and progress on previous goals, the Team proposed an IEP for the period 03/07/2024 to 03/06/2025 and a residential placement at Seven Hills. Nine goals were proposed, four of which were in the skill areas of Social/Behavioral. At that time, Parent expressed concern about the emotional support provided to Student.
  7. On March 27, 2024, Parent accepted the IEP and placement in full.[5]
  8. On April 4, 2024, Jonathan Worcester, Assistant Vice President of Clinical Operations at Seven Hills, informed Meaghan Ingalls, Assistant Director of Special Education for Seven Hills, that the clinical team believed that Student required “more intensive therapeutic support” than Seven Hills was able to offer, as Student’s mental health needs were, at that time, his “greatest area of needs.” Student’s emotional needs prevented him from building healthy relationships with staff and peers across all settings. He required a placement with a “primary focus on mental health treatment,” which Seven Hills could not offer. Specifically, he required “a structured therapeutic milieu, intensive therapeutic supports, a therapeutic academic component,” 1:1 staffing and coaching, and opportunities for check-ins with mental health professionals. Ms. Ingalls informed Beverly and Parent of this information.
  9. On August 7, 2024, Seven Hills informed Parent that Student would be discharged within 60 days.
  10. Parent invoked Student’s stay-put rights on or about August 30, 2024.
  11. At Parent’s request, the Team met on October 8, 2024. At the October Team meeting, Seven Hills staff indicated that Student was “a great kid in the wrong setting.” Staff reported concern that he was not engaging in activities in the school or residential setting. He continued to be staffed one to one. According to Seven Hills, Student was not appropriate for their program due to significant safety concerns and because he was not accessing the therapeutic curriculum. The District agreed that Seven Hills was not an appropriate placement and offered to provide whatever additional supports Seven Hills required to maintain Student safely while the District attempted to locate another residential program for him. Parent requested additional supports, such as increased counseling, monthly meetings, and a new residence. However, she also indicated that she would like to continue the search for a new placement.
  12. On November 7, 2024, Student reported to the Seven Hills psychiatrist that he was “feeling sad and angry most of the time.” At school, Student was not engaging in programming. He denied suicidal or homicidal ideation. The psychiatrist noted that Student was more agitated in the residences, especially on Fridays and Sundays, coinciding with home visits and returns to school. Student had done “better” when meeting with his counselor, which he had not been doing.
  13. On November 13, 2024, Parent was informed by Seven Hills that Student had authored a document on his iPad that included homicidal ideation. As such, Student was discharged “immediately” for “presenting a clear and present health and safety threat to himself and others.”
  14.  According to page 31 of “Seven Hills at Crotched Mountain Parent and Student Handbook,” a copy of which was signed by Parent on September 7, 2023, “[i]f a student endangers the physical health and safety of him/herself or others, emergency discharge procedures will be used by Seven Hills at Crotched Mountain. . . . It may be necessary to immediately terminate a student because of serious potential harm to the student him/herself, other students or interruption of the overall program.”
  15. On November 26, 2024, Parent filed a Hearing Request[6] incorporating the instant Motion and seeking, in part, a “[r]uling that the District and/or Seven Hills has violated the Student’s Stay Put rights and mandating that the Student’s Stay Put placement of the Student at Seven Hills’ Crotched Mountain be maintained with [] additional orders.” Parents also alleged that the District failed in its Child Find obligations, including evaluating Student and developing a new IEP that was reasonably calculated to provide him with a FAPE. Parent also alleged implementation failures and asserted that with modifications, Seven Hills could be appropriate for Student.
  16. The District has been pursuing an alternate educational placement for Student without success.[7]

LEGAL STANDARDS:

I. Seven Hills Motion to Dismiss

  1. Legal Standards
  1. Motion to Dismiss

Hearing Officers are bound by the BSEA Hearing Rules for Special Education Appeals (Hearing Rules) and the Standard Rules of Adjudicatory Practice and Procedure, 801 Code Mass Regs 1.01. Pursuant to Rule XVII A and B of the Hearing Rules and 801 CMR 1.01(7)(g)(3), a hearing officer may allow a motion to dismiss if the party requesting the hearing fails to state a claim upon which relief can be granted. These rules are analogous to Rule 12(b)(6) of the Federal Rules of Civil Procedure. As such, hearing officers have generally used the same standards as the courts in deciding motions to dismiss for failure to state a claim, which require the fact-finder to make a determination based on a complaint or hearing request alone.

To survive a motion to dismiss, there must exist “factual ‘allegations plausibly suggesting (not merely consistent with)’ an entitlement to relief.”[8] The hearing officer must take as true “the allegations of the complaint, as well as such inferences as may be drawn therefrom in the plaintiff’s favor.”[9] These “[f]actual allegations must be enough to raise a right to relief above the speculative level.”[10]

  1. Jurisdiction of the BSEA

The BSEA has limited subject matter jurisdiction. 20 U.S.C. § 1415(b)(6) grants the Bureau of Special Education Appeals (BSEA) jurisdiction over timely complaints filed by a parent/guardian or a school district “with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to such child.”[11]  In Massachusetts, a parent or a school district, “may request mediation and/or a hearing at any time on any matter[12] concerning the eligibility, evaluation, placement, IEP, provision of special education in accordance with state and federal law, or procedural protections of state and federal law for students with disabilities.”[13] The BSEA “can only grant relief that is authorized by these statutes and regulations, which generally encompasses orders for changed or additional services, specific placements, additional evaluations, reimbursement for services obtained privately by parents or compensatory services.”[14]

  1. Placement in Out-of-State Programs

Pursuant to 603 CMR 28.06(3)(e)(5), if special education and related “services are provided in a placement outside of Massachusetts, and such school has not received approval by the Department under 603 CMR 28.09, the Administrator of Special Education must ensure that such school has received approval from the host state. No placements of Massachusetts students may be made in out-of-state programs without approval of the program by the host state or, if the host state does not have an approval process, then the program must provide documentation of reputable accreditation. The requirements of 603 CMR 28.06(3)(b through e), apply to all such placements.”[15] 603 CMR.06(3)(e) states, in part, that “Students placed by the school district in [unapproved] programs shall be entitled to the full protections of state and federal special education law and regulation, including but not limited to those protections specified in 603 CMR 28.09 and in 603 CMR 18.00.”[16]

  1. Application of Legal Standards

Seven Hills’ argument that it “is a private school located in New Hampshire, beyond the jurisdiction and enforcement power of the BSEA” is disingenuous and unpersuasive. Although the BSEA’s jurisdiction is limited, it encompasses “any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to such child.”[17] Here, the issues for Hearing (i.e., stay-put placement, child find, and implementation of services) are clearly within the authority of the BSEA.  Moreover, Beverly publicly funded Student’s placement at Seven Hills; such placement of a student in an unapproved, out-of-state private program did not strip Student of state and federal protections. To the contrary, Massachusetts regulations state unequivocally that “students placed by the school district in such programs shall be entitled to the full protections of state and federal special education law and regulation, including but not limited to those protections specified in 603 CMR 28.09 and in 603 CMR 18.00.”[18]  These protections include the right to due process at the BSEA.[19] By agreeing to admit Student, Seven Hills subjected itself to BSEA jurisdiction. To find otherwise would be contrary to the law and to the interests of justice.  Seven Hills’ Motion to Dismiss is thus DENIED.

II. Parents’ Motion for Stay Put

  1. Legal Standards
  1. Stay-Put

The Individual with Disabilities Education Act’s (IDEA) “stay-put” provision requires that unless the State or local educational agency and the parents otherwise agree, during the time that a parent and school district are engaged in an IDEA dispute resolution process, “… the child shall remain in the then-current educational placement of the child, or, if applying for initial admission to a public school, shall, with the consent of the parents, be placed in the public school program until all such proceedings have been completed.”[20] Preservation of the “status quo” assures that the student “stays-put” in the last placement the parents and the school district agreed was appropriate for him.[21] In addition, the stay-put provision reflects “the preference of Congress for maintaining the stability of a disabled child’s placement and minimizing disruption to the child while the parents and school are resolving disputes.”[22] Generally, the last accepted IEP is the stay-put IEP.[23]

To determine a child’s “stay-put,” courts often look for the “operative placement,” or the IEP that is “actually functioning at the time the dispute first arises.”[24] Some circuits have also examined the impact of the proposed change on the student.[25]  Recent BSEA decisions and rulings have similarly applied these principles to identify the “operative placement” and examine the impact on the student of the proposed change.[26]

Nevertheless, hearing officers have the authority to order the removal of a child to an Interim Alternative Educational Setting (IAES) for up to 45 days when maintaining the child’s placement is substantially likely to result in injury.[27]

2. Stay-Put and Private Placements.

603 CMR 18.05(7) reinforces the stay-put entitlement by obligating the private program to “make a commitment to the public school district or appropriate human service agency that it will try every available means to maintain the student’s placement until the local Administrator of Special Education or officials of the appropriate human service agency have had sufficient time to search for an alternative placement.”[28] The regulation applies either to “termination or discharge of the student.”[29]  BSEA rulings[30] have consistently found that

“[u]nder both federal and state special education law an eligible student who challenges any aspect of her special education program through a due process proceeding is entitled to remain in the program in which s/he is then currently enrolled until the dispute is resolved by an administrative or judicial officer, or by an agreement. 20 U.S.C. § 1415 (j); 34 CFR § 300.514; 603 CMR 28.08 (7). The regulatory language according this right is unequivocal. There are no qualifiers.”[31] 

Specifically, in In Re: Lolani, Hearing Officer Byrne explained that

“the Massachusetts regulations must be read to effect the purpose of both the IDEA and M.G.L. c. 71B to provide a free, appropriate public education to all students with disabilities. As stated in the first section of the regulations governing private special education schools, the provisions of 603 CMR 18.00 relate back to the general special education regulations found at 603 CMR 28.00. These two sets of regulations must be read to complement, not to exclude, each other. Reading the regulatory language of 603 CMR 18.05 (7) in this context I find that the termination provisions applicable to publicly funded private school students set out explicit procedures that acknowledge the special characteristics of private school placements, but do not exempt those placements from adherence to the fundamental set of special education rights that attach to and travel with the student. One of those fundamental rights is the right to “stay put”. Had the drafters intended to strip private school students of a right accorded to public school students[,] they would have said so.”[32]

This does not mean that “parental assertion of stay put rights to a particular private school bar[s] any publicly funded student from termination, [because, otherwise,] the regulation covering that specific topic – termination of publicly funded students from a private school – would serve no purpose.”[33] There are situations when the term “current educational placement” referenced in 34 CFR 300.518 includes the setting in which the IEP is implemented but not considered to be location specific.[34] However, where the school district has yet to identify any alternative placements for the student, the Hearing Officer must “look to the specifics [of a] case, with an eye for ensuring [the student’s] continued education and for providing her with a FAPE as soon as possible.”[35]

3. Terminations from Private School Placements

603 CMR 18.05(7) addresses termination of students in private school placements:

  1. The school shall keep such person informed of the progress of the student and shall notify that person immediately if termination or discharge of the student is being discussed.
  1. The school shall, at the time of admission, make a commitment to the public school district or appropriate human service agency that it will try every available means to maintain the student’s placement until the local Administrator of Special Education or officials of the appropriate human service agency have had sufficient time to search for an alternative placement.
  1. Planned Terminations:
    1. Except in emergency cases, the school shall notify the school district of the need for an IEP review meeting. The school district shall arrange such meeting and provide to all parties including the parent and if appropriate, the student, notice of this meeting (10) days in advance of the intended date of the meeting. The meeting shall be held for the purpose of planning and developing a written termination plan for the student.
    2. The plan shall describe the student’s specific program needs, the short and long term educational goals of the program, and recommendations for follow-up and/or transitional services.
    3. The school shall thoroughly explain termination procedures to the student, the parents, the Administrator of Special Education and officials of the appropriate human service agency.
    4. The written termination plan shall be implemented in no less than (30) days unless all parties agree to an earlier termination date.
  1. In case of an emergency termination, which shall be defined as circumstances in which the student presents a clear and present threat to the health and safety of him/herself or others, the school shall follow the procedures required under 603 CMR 28.09(12).”

603 CMR 28.09(12)(b) states as follows:

Emergency termination of enrollment. The special education school shall not terminate the enrollment of any student, even in emergency circumstances, until the enrolling public school district is informed and assumes responsibility for the student. At the request of the public school district, the special education school shall delay termination of the student for up to two calendar weeks to allow the public school district the opportunity to convene an emergency Team meeting or to conduct other appropriate planning discussions prior to the student’s termination from the special education school program. With the mutual agreement of the approved special education school and the public school district, termination of enrollment may be delayed for longer than two calendar weeks.”

  1. Application of Legal Standards

Based on facts available to me, I find that Seven Hills is Student’s stay-put placement.  Seven Hills, therefore, must re-admit Student effective immediately, and the District must continue to fund Student’s placement at Seven Hills pending the underlying dispute.

Through the stay-put provision of the IDEA, Congress “barred” schools “from changing [ ] placement over the parent’s objection until all review proceedings were completed …. and allowed for interim placements [only] where parents and school officials are able to agree on one …. Conspicuously absent … is any emergency exception for dangerous students.”[36] To advance this purpose, the IDEA imposes comprehensive protections before a district may effect a change in placement with which a parent does not agree.[37]

I note at the outset that, according to the District, Seven Hills is Student’s stay-put placement. In contrast, Seven Hills asserts that, pursuant to Massachusetts law, Stay-put does not apply to situations in which a private school has lawfully terminated a student on the basis of health and safety, that the BSEA decisions on which Parent relies have no precedential value, that these decisions “trump and effectively render void lawfully-promulgated DESE termination regulations, an act which the BSEA simply has no power to do”, and that “[p]erhaps Student can receive the array of services contained in the last-signed IEP at home with in-person or virtual tutoring, or in-district somewhere in Beverly while a longer-term successor placement is located and secured. Stay-put should not be automatically assumed to be school-specific.”

It goes without saying that the safety of Student, peers, and staff is of paramount importance, and in the instant matter, it is the responsibility of Seven Hill, in conjunction with the District, to maintain such a safe and orderly environment. “[T]he stay-put provision does not remove all discretion from schools in the provision of special education.”[38] Pursuant to 603 CMR 28.08(7)(c), Seven Hills (or the District) could have filed for due process asserting that maintaining Student at Seven Hills was substantially likely to result in injury to himself or others and asked for an order to “temporarily change” Student’s placement.[39] Neither Seven Hills nor the District did so. [40]

Nor does it appear that Seven Hills followed the correct process for an emergency termination.[41] However, even if the District and/or Seven Hills had followed the correct procedure for an emergency termination, Student’s stay-put is Seven Hills.[42]  Student has attended Seven Hills since September 2023. As recently as March 27, 2024, Parent fully accepted placement at Seven Hills, a placement proposed by the District after a full re-evaluation and a Team meeting where Seven Hills staff members provided input into the proposal. The bottom line is that Seven Hills is the placement identified in Student’s current, active, accepted, and most-recently implemented IEP.[43] That it may not offer Student a FAPE is irrelevant for determining stay-put. At its most basic interpretation, stay-put is the last educational placement a student attended prior to a placement dispute, the placement delineated in the “last implemented IEP”[44], regardless of whether the  placement is no longer appropriate.[45] The purpose of the stay-put provision is continuity and preservation of the “status quo”[46]; it is a procedural safeguard[47], not a promise of substantive FAPE.[48] 

In its Response, Seven Hills indicates that Stetson School was an available program to Student, but Parent refused to proceed with the referral process. I place little weight on this here because the District has not offered said placement as an available program, and I have no information on the basis of which to assess whether the move from Seven Hills to Stetson would eliminate or fundamentally change one or more basic elements of Student’s current program.[49] Therefore, at this moment in time, I cannot find that Stetson or any other program, including the home program that Seven Hills suggests Beverly could provide, is available to Student.[50]

Although Seven Hills argues that prior BSEA decisions have no precedential value, I note that even in cases where proper termination procedures were followed, Hearing Officers have concluded that if, at the time of that hearing, no appropriate placement is available,[51] the stay-put placement remains the private school placement, because, “[a]s a matter of public policy, and if the IDEA’s stay put provisions are to have any meaning, the BSEA cannot issue a decision finding that [the] [s]tudent does not have any placement in which to remain during the pendency of this matter,” and the removal of the private school as the stay-put placement would [leave] the student without any educational placement.[52] Here, no alternative placement to Seven Hills has yet been identified, and hence, I am precluded from assessing whether “a change in location” could suffice as Student’s stay-put.[53]

Therefore, I find no reason to ignore the preference of Congress for maintaining the stability of a disabled child’s placement and minimizing disruption to the child while the parents and school are resolving disputes.[54] Seven Hills is the only program Student has known for 2 years; it is the program identified in his “last accepted IEP”[55]; it is his last implemented placement[56]; and, no other program is currently available to him.  As such, Student’s stay-put placement is Seven Hills.

III. District’s Partial Objection to Accelerated Status

  1. Legal Standards

Pursuant to BSEA Hearing Rule II(D)(1), hearings may be assigned accelerated status in the following situations:

  1. When the health or safety of the student or others would be endangered by the delay; or
  1. When the special education services the student is currently receiving are sufficiently inadequate such that harm to the student is likely; or
  1. When the student is currently without an available educational program or the student’s program will be terminated or interrupted immediately.”

“When accelerated status is requested, a Hearing Officer will consider which issues, if any, meet the criteria above, and will schedule only those issues on an accelerated track. The remaining issues, if any, will proceed separately on a non-accelerated track.”[57]

  1. Application of Legal Standards

The parties agree that Student’s stay-put issue meets the standard for accelerated status. However, Parent’s Hearing Request also raises issues relating to FAPE, including whether the District failed in its Child Find obligations; whether Seven Hills failed to implement Student’s IEP; and whether Seven Hills remains an appropriate placement for Student.

Parent contends that all issues should be heard at the Hearing currently scheduled for December 26, 2024.” However, the procedural and substantive issues relating to child find, implementation, and the offer of an IEP reasonably calculated to offer Student a FAPE  do not meet the accelerated hearing standard. As this Ruling grants Student stay-put rights at Seven Hills and, per the Order indicated infra, instructs the District and Seven Hills to implement additional supports and services to ensure Student’s safe placement during the pendency of this dispute, the remaining FAPE issues may “proceed separately on a non-accelerated track.”[58]

ORDER:

Seven Hills’ Motion to Dismiss is hereby DENIED.

Parents’ Motion to Enforce Stay-Put is hereby ALLOWED. Seven Hills must re-admit Student immediately, and the District must continue to fund Student’s placement at Seven Hills during the pendency of the instant dispute. A Team meeting must be convened within two business days of receipt of this Ruling to identify any additional supports and services that would make Student’s attendance during the pendency of the dispute as safe as possible. The District is instructed to fund any such supports and services.  

Beverly Public Schools’ Partial Objection To Accelerated Status is hereby ALLOWED. The following issues will proceed on a regular track:[59]

  1. Whether the District failed in its Child Find obligations;
  2. Whether Seven Hills failed to implement Student’s IEP; and
  3. Whether Seven Hills remains an appropriate placement for Student.

The parties will be provided with a Revised Notice of Hearing.

By the Hearing Officer:

/s/ Alina Kantor Nir 

Alina Kantor Nir
Dated:  December 6, 2024


[1] Parent submitted nine exhibits (P1-P9) in support of her Motion for Stay-Put.

[2] The District submitted four exhibits (SA-SD) in support of its Objection To Accelerated Status To The Parents’ Request For Hearing And Motion For ‘Stay Put’.

[3] Seven Hills filed this Motion along with its Response to Parent’s Request for Expedited Hearing. Seven Hills submitted no exhibits in support of its Motion to Dismiss.

[4] See BSEA Hearing Rule VI D.

[5] Seven Hills alleges that

“[o]n 3/25/24, Ms. [] notified the [Seven Hills] team that [Parent] rejected the IEP, offering the following signed parent response on 3/23/24: ‘It is apparent at this time with [Student] being there since September 2023, the residential treatment center cannot provide the psychological support and environment that will allow [Student] to overcome his past and current traumas so he can thrive and achieve the required rules set forth by the team at [Seven Hills]. He will require intense 1:1 care especially in the field of psychological behavior and mental health. Because of the severities of his past traumas, I see no other option but to have him homeschooled where he can receive the nurturing and emotional car(e).’ As a result of this response, the Beverly Public Schools notified the Massachusetts Bureau of Special Education Appeals as they were required.”

Nevertheless, the documentary exhibits submitted show that Parent accepted the IEP and placement in full on March 27, 2024.

[6] Parent filed the Hearing Request seeking expedited status. Via letter dated November 26, 2024, the Director of the BSEA, Reece Erlichman, informed Parent that the matter did not appear to meet the expedited hearing standard but did meet the accelerated hearing standard in accordance with the Hearing Rules for Special Education Appeals. The Hearing is scheduled for December 26, 2024.

[7] According to Seven Hills, “in or about May of 2024, a referral packet was sent to Stetson School. At a 5/2/24 IEP Team meeting, Ms. [] had explained to [Parent] that Stetson had two treatment strands: one for children with problem sexual behavior and one for children without. Stetson reviewed the packet and the admissions team  ultimately accepted it for placement. However, given [Parent’s] strong opposition to the placement, admission did not result.”

[8] Iannocchino v. Ford Motor Co., 451 Mass. 623, 636 (2008) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007)).

[9] Blank v. Chelmsford Ob/Gyn, P.C., 420 Mass. 404, 407 (1995).

[10] Golchin v. Liberty Mut. Ins. Co., 460 Mass. 222, 223 (2011) (internal quotation marks and citations omitted).

[11] See 34 C.F.R. §300.507(a)(1).

[12] Limited exceptions exist that are not here applicable.

[13] 603 CMR 28.08(3)(a).

[14] In Re: Georgetown Pub. Sch., BSEA #1405352 (Berman, 2014).

[15] Emphasis added.

[16] Emphasis added.

[17] See 34 C.F.R. §300.507(a)(1).

[18] 603 CMR.06(3)(e).

[19] See 34 CFR 300.507 (a)(1).

[20] 20 U.S.C. §1415(j); see 34 CFR §300.514; ; M.G.L. c. 71B; 603 CMR 28.08(7); see also In Re: Framingham Public Schools and Quin, BSEA #1605247 (Reichbach, 2016); In Re: Abington Public Schools, BSEA # 1407763 (Figueroa, 2014); Honig v. Doe, 484 U.S. 305, 325 (1988); Verhoven v. Brunswick School Committee, 207 F.3d 1, 10 (1st Cir. 1999); M.R. and J.R. v. Ridley School District, 744 F.3d 112, 117 (3d Cir. 2014).

[21] See limiting language, Doe v. Brookline School Committee, 722 F.2d 910, 918 (1st Cir. 1983) (“We therefore join the Seventh Circuit in its view that (e)(3) establishes a strong preference, but not a statutory duty, for maintenance of the status quo .… We do not believe Congress intended to freeze an arguably inappropriate placement and program for the three to five years of review proceedings. To construe (e)(3) in this manner would thwart the express central goal of the Act: provision of a free appropriate education to disabled children”) (internal citations omitted); see also In re: Student v. Hampshire Regional School District (Ruling on Parents’ Motion to Enforce Stay Put), BSEA # 2103975 (Kantor Nir, 2020) (finding no stay put rights attached to an erroneous increase in reading services to which there was “no meeting of the minds” as the increase “was never discussed at the Team meeting” ); In Re: Nathan F., BSEA # 96-1706 (Byrne, 1996) (finding that it there was no “meeting of the minds” on modified speech-language services for Student as a result of the Team meeting, and therefore the district had no obligation to provide services other than those set out in the last accepted IEP).

[22] Student & Concord & Natick Public Schools (Corrected Ruling on Mother’s Request for “Stay Put” Order), BSEA # 18-00182 (Berman, 2017).

[23] See 20 U.S.C. §1415(j); 34 CFR §300.514.

[24] Drinker v. Colonial School District, 73 F.3d 859, 867 (3rd Cir. 1996); Thomas v. Cincinnati Bd. of Education, 918 F. 2d 618. 626 (6th Cir., 1990).

[25] See A.W. v. Fairfax County Sch. Bd., 372 F.3d 674, 681–83 (4th Cir.2004) (concluding that educational placement referred to an “instructional setting” rather than to the “precise location of that setting” or the “precise physical location where the disabled student is educated).

[26] See In Re: Agawam Public Schools and Melmark-New England, BSEA #1504488 (Berman, 2015).

[27]  See 34 CFR 300.532 (b)(ii); see also 603 CMR 28.08(7)(c) (“A hearing officer may order a temporary change in placement of an eligible student for reasons consistent with federal law, including but not limited to when maintaining such student in the current placement is substantially likely to result in injury to the student or others”).

[28] 603 CMR 18.05(7)(b).

[29] 603 CMR 18.05(7)(a).

[30] See, e.g., In re: Student v. Belmont Public Schools and Devereux Advanced Behavioral Health, BSEA # 2103476 and BSEA # 2104694 (Figueroa, 2021) (finding Devereaux to be student’s stay put where no other program had yet to be identified for him); In re: Chelmsford Public Schools v. Swansea Wood School, BSEA # 22-03132 (Kantor Nir, 2021) (finding that where at the time of the filing for Hearing, the student “did not have any program available to him in the immediate future,” the private program was his stay put placement).

[31] In Re: Lolani, BSEA # 04-0359 (Byrne, 2003).

[32] Id.

[33] Student v. Georgetown Public Schools and Landmark School (Rulings On Parents’ Motion For Summary Decision, Parents’ Motion For Stay Put And Landmark School’s Motion For Summary Judgment), BSEA # 14-08733 (Oliver, 2014).

[34] See AW ex rel. Wilson v. Fairfax Cnty. Sch. Bd., 372 F.3d 674, 676 (4th Cir. 2004) (“the term “educational placement” as used in the stay-put provision refers to the overall educational environment rather than the precise location in which the disabled student is educated”); see also Sherri A.D. v. Kirby, 975 F.2d 193, 199 n.5 and 206 (5th Cir. 1992) (“educational placement” not a place but a program of services); Weil v. Board of Elementa1y and Secondary Educ., 931 F.2d 1069, 1072 (5th Cir. 1991) (change of schools under the circumstances presented in this case not a change in “educational placement”).

[35] In re: Susan S. and The Cotting School and Falmouth Public School, BSEA # 05-1581 (Sherwood, 2004); see also In Re: Student v. Agawam Public Schools & Melmark New England, BSEA # 15-04488 (Berman, 2015) (the “fundamental purpose of ‘stay put’ … is to ensure stability for the student regardless of conflicts between and among the adults”).

[36] Honig v. Doe, 484 U.S. 305, 327 (1988).

[37] See Sch. Committee of Town of Burlington, Mass. v. Dep’t of Educ. of Mass., 471 U.S. 359, 368 (1985) (“Apparently recognizing that [a] cooperative approach would not always produce a consensus between the school officials and the parents, and that in any disputes the school officials would have a natural advantage, Congress incorporated an elaborate set of what it labeled ‘procedural safeguards’ to insure the full participation of the parents and proper resolution of substantive disagreements.”).

[38] V.D. v. State, 403 F. Supp. 3d 76, 92 (E.D.N.Y. 2019).

[39] That Student’s removal here was not part of a disciplinary process is irrelevant. See K.C. for M.D. v. Reg’l Sch. Unit 73, 616 F. Supp. 3d 63, 75 (D. Me. 2022), appeal dismissed sub nom. Doane v. Reg’l Sch. Unit No. 73, No. 22-1635, 2022 WL 18861809 (1st Cir. Dec. 6, 2022) (“although the appeal [by the District] was authorized by the IDEA, school administrators were not authorized under the IDEA to perpetuate their own, protracted, central office IAES…. [W]hether a proceeding is disciplinary or not does not dictate whether the underlying conduct or behavior ‘violated a code of student conduct’ or whether ‘special circumstances’ may exist to authorize school personnel to appeal what they deem to be a potentially injurious placement decision by the IEP Team. The subparagraph (k) safeguards are concerned more with outlining appropriate administrative consequences for conduct (whether a manifestation or not) than with defining what is or is not a ‘disciplinary’ measure…. Here, Defendant unilaterally removed D.C. from Oxford, without securing Plaintiff’s consent to Homebound Instruction and in an effort to address different needs, which constituted not only an indefinite change in location, but a total cessation of services for an indefinite period”).

[40] See Christine C. v. Hope Twp. Bd. of Educ., No. 318CV03984FLWDEA, 2021 WL 363743, at *6 (D.N.J. Feb. 2, 2021) (unilateral removal to homebound instruction “constituted not only an indefinite change in location, but a total cessation of services for an indefinite period”).

[41] Specifically, there is no evidence that Seven Hills waited for Beverley to “assume responsibility” for Student before termination, as  required by the emergency termination procedure delineated in 603 CMR 28.09(12)(b). By making its termination “effective immediately,” Seven Hills did not give Beverly the opportunity to “request” a “delay [in] termination of the student for up to two calendar weeks to allow the public school district the opportunity to convene an emergency Team meeting or to conduct other appropriate planning discussions prior to the student’s termination from the special education school program.” Further, whether Seven Hills followed its Student Handbook in effectuating Student’s termination is irrelevant here.

[42] See In re: Student and Quincy Public Schools and League School of Greater Boston, BSEA # 22-02940 (Mitchell, 2021) (“In situations where a student would be left without an appropriate alternate placement, the BSEA has determined that a private school may have stay-put obligations beyond those set forth in the State regulations, even in the case of an emergency termination based on safety concern”). 

[43] See Millay v. Surry Sch. Dep’t, 584 F. Supp. 2d 219, 230 (D. Me. 2008) (“the Court concludes that [] Y.M.’s stay put placement is the last placement that Ms. Millay and the MDOE or Surry agreed to be appropriate”).

[44] See In re: Chelmsford Public Schools v. Swansea Wood School, BSEA # 2203132 (Kantor Nir, 2021) (“I find that the District has met its burden to show that Swansea Wood is Student’s stay put placement until he is able to attend Whitney Academy. Swansea Wood is an approved private residential special education school program. Hence, students who are publicly funded and attend Swansea Wood are entitled to the full protections of state and federal special education laws and regulations, including stay put. Student has attended Swansea Wood since November 2020 pursuant to two consecutive, fully accepted IEPs (for the period 8/11/2020 to 6/28/2021 and for the period 8/3/2021 to 8/2/2022, respectively), both of which place Student at Swansea Wood. Swansea Wood participated in Student’s annual Team meeting on August 11, 2021 and proposed Swansea Wood for Student. Parent accepted this proposal. Swansea Wood is therefore Student’s ‘last accepted placement’”) (internal citations omitted).

[45] E. E. by & through Hutchison-Escobedo v. Norris Sch. Dist., 4 F.4th 866, 873 (9th Cir. 2021)(denying a California district’s request to create an exception to the IDEA’s pendency provision that would keep parents from invoking stay-put protections if they allege the current placement failed to offer FAPE).

[46] Student & Concord & Natick Public Schools (Corrected Ruling on Mother’s Request for “Stay Put” Order), BSEA # 18-00182 (Berman, 2017).

[47] See id. (“The ‘stay put’ rule is a fundamental procedural protection afforded parents and students by the IDEA and the Massachusetts special education statute, G.L. c. 71B”).

[48] See also In re: Student v. Belmont Public Schools and Devereux Advanced Behavioral Health, BSEA #2103476 (Figueroa, 2020) (“Long term, Devereux is not the appropriate placement for Student, but … Student is legally entitled to stay-put at Devereux”); In re: Student and Quincy Public Schools and League School of Greater Boston, BSEA # 22-02940 (Mitchell, 2021) (“League is stay-put for Student, even if I were to find that Student was not able to receive a FAPE at League, that Student would not be deprived of a FAPE if he were to leave League, and that League had properly implemented the emergency termination procedures”).

[49] See Lunceford v. D.C. Bd. of Educ., 745 F.2d 1577, 1582 (D.C.Cir.1984) (to show change in educational placement, parent “must identify, at a minimum, a fundamental change in, or elimination of a basic element of the education program”); Henry v. Sch. Admin. Unit No. 29, 70 F. Supp. 2d 52, 60 (D.N.H. 1999) (“in order to obtain a stay-put injunction, the party alleging the violation must prove that a change in educational placement is being proposed”); Cavanagh v. Grasmick, 75 F.Supp.2d 446, 468 (D.Md.1999) (“[A] fundamental change in, or elimination of a basic element of, the educational program, which adversely affects the child’s learning experience in a significant way, is what constitutes a ‘change in educational placement’ for purposes of the IDEA”). 

[50] Nevertheless, it is difficult to envision how a home program would not eliminate or fundamentally change one or more basic elements of Student’s program. See cf. Wagner v. Bd. of Educ. of Montgomery Cnty., Maryland, 198 F. Supp. 2d 671, 676 (D. Md. 2002), order vacated sub nom. Wagner v. Bd. of Educ. of Montgomery Cnty., 335 F.3d 297 (4th Cir. 2003) (“A change from a home based program to a school based program, in the middle of a school year, without any transition, is a fundamental change in a basic element of the program, and would adversely affect Daniel’s learning experience in a significant way. Whatever change may be appropriate for the next school year, there is no way that an abrupt change from home to school constitutes stay-put”).

[51] See Framingham and Guild and DDS (Ruling); In re: Chelmsford Public Schools v. Swansea Wood School.

[52] Id.; see also In Re: Belmont and Devereaux,BSEA #2103476 (Figueroa, 2020) (stay-put applied to a private residential special education program that was found not to be appropriate for a student, but for which modifications could be made, until another appropriate program was identified, and for whom, at the time of the hearing, no viable alternative educational placement had been identified).

[53]  See In Re: Dracut Public Schools and Melmark New England, BSEA # 09-1566 (Crane, 2008) (citing to Hale v. Poplar Bluff R-1 School District, 280 F.3d 831 (8th Cir. 2002) (determination of whether there has been a change in student’s “then-current educational placement” is a “fact-specific” inquiry that considers the impact of a change of placement on student’s education); Tennessee Department of Mental Health v. Paul B., 88 F.3d 1466 (6th Cir. 1996) (“must identify a detrimental change in the elements of an educational program in order for a change to qualify for the stay put provision”).

[54] See Drinker, 73 F.3d at 864-65.

[55] See 20 U.S.C. §1415(j); 34 CFR §300.514.

[56] See In re: Chelmsford Public Schools v. Swansea Wood School.

[57] See BSEA Hearing Rule II(D)((3)(a).

[58] See id.

[59] Any objections to the statement of these issues must be made in writing within 48 hours of the issuance of this Ruling.

Updated on December 9, 2024

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