COMMONWEALTH OF MASSACHUSETTS
DIVISION OF ADMINISTRATIVE LAW APPEALS
BUREAU OF SPECIAL EDUCATION APPEALS
In re: Student v. Newburyport Public Schools
BSEA # 24-14336
RULING ON
PARENTS’ REQUEST FOR EXPEDITED/ACCELERATED STATUS AND
NEWBURYPORT PUBLIC SCHOOLS’ OBJECTION TO ACCELERATED AND EXPEDITED STATUS
This matter comes before the Hearing Officer on Parents’ June 6, 2024 request that expedited or accelerated status be granted for the above-referenced matter (Parents’ Request). On June 6, 2024, Bureau of Special Education Appeals (BSEA) Director Reece Erlichman notified the parties that the matter did not meet the standard for expedited status. Her letter further stated that
“it is not clear from the request as written whether the standard for an accelerated hearing, pursuant to the Hearing Rules for Special Education Appeals, has been met. A Notice of Hearing reflecting a non-accelerated/non-expedited hearing date is therefore enclosed. However, for additional consideration of your request for accelerated status, you may notify the assigned Hearing Officer, who may then inquire further and make a determination.”
On June 7, 2024, Newburyport Public Schools (Newburyport or the District) filed Newburyport Public Schools’ Response and Objection to Accelerated and Expedited Status (Objection), asserting, in part, that BSEA Matter No. 2414336 fails to meet the standard for either expedited or accelerated status. Via email dated June 20, 2024, Parents’ Advocate requested reconsideration of Director Ehrlichman’s finding relative to Issue #7.
As testimony or oral argument would not advance the Hearing Officer’s understanding of the issue involved, this Ruling is being issued without a hearing, pursuant to Bureau of Special Education Appeals Hearing Rule VII(D).
For the reasons set forth below, Parents’ Request is ALLOWED, in part, and DENIED, in part. Specifically, Issue #7 of the Hearing Request will proceed on an accelerated track, and Issues # 1-6 and 8 will proceed on a regular track.
FACTUAL BACKGROUND AND RELEVANT PROCEDURAL HISTORY[1]
- Student is a second grade resident of Newburyport, Massachusetts. He attends the Francis T. Bresnahan Elementary School in Newburyport, his neighborhood public school. He holds diagnoses of autism and Attention Deficit/Hyperactivity Disorder Combined Type and was found eligible for special education under an Emotional Disability in his last accepted Individualized Education Program (IEP).
- On May 2, 2023 the District proposed, and Parents accepted, an IEP and full inclusion placement for the period 5/2/23 to 5/1/24, which included, in part, extended school year services (ESY) with Newburyport Youth Services (5x345min) from July 5, 2023 to July 28, 2023.2
- The Team convened on May 22, 2024 to develop Student’s IEP but was unable to complete the IEP, including to determine a final location for ESY services, during the hour and a half meeting. The District scheduled a follow up Team meeting for Thursday, June 13, 2024.
- According to Parents, Student’s last accepted ESY location would not be appropriate for Student for the summer of 2024. According to the District, in anticipation of Team discussion and in an effort to work collaboratively with the Parents, the District initiated conversation with Camp Triumph to facilitate team discussion on the issue. However, given the unfocused nature of the May 22, 2024 Team meeting, which, the District asserts, was the fault of Parents’ Advocate, the Team was unable to discuss ESY location.
- On June 6, 2024 Parents filed a Hearing Request with the BSEA asserting, in part, that Student’s IEPs for the period 2023-2024 and 2024-2025 denied Student a FAPE. In addition, Parents identified the following issue for Hearing (Issue #7 in Parents’ Hearing Request):
“Does Newburyport’s failure to provide the ESY programming at Camp Triumph, proposed through its special education administrator, constitute a violation of FAPE especially given the timely nature of the agreement and later refusal? Does this qualify [Student], a high-needs student being educated in a general education setting with teacher and aide support throughout his day, as a student without an available placement for ESY?”
LEGAL STANDARDS AND DISCUSSION:
- Legal Standards for Expedited and Accelerated Hearings.
Pursuant to BSEA Hearing Rule II(C)(1), a matter may be granted expedited status under the following circumstances only:
“Student Discipline: Hearings involving discipline are scheduled on an expedited timeline consistent with federal IDEA regulations. Expedited status will be granted:
- when a parent disagrees with a school district’s determination that the behavior leading to discipline was not a manifestation of the student’s disability; or
- when a parent disagrees with a school district’s decision regarding a student’s placement in the discipline context; or
- when a school district asserts that maintaining the current placement of the student during the pendency of due process proceedings is substantially likely to result in injury to the student or others.”
BSEA Hearing Rule II(D)(1) states that accelerated status may be granted in the following circumstances:
“Hearings may be assigned accelerated status in the following situations:
- When the health or safety of the student or others would be endangered by the delay; or
- When the special education services the student is currently receiving are sufficiently inadequate such that harm to the student is likely; or
- When the student is currently without an available educational program or the student’s program will be terminated or interrupted immediately.”
- Application of Legal Standards.
After applying the principles set forth above to the matter before me, I find that Parents’ Hearing Request, in full, fails to meet the standard for expedited hearing under BSEA Hearing Rule II(C)(1). The instant matter alleges neither discipline claims nor claims relating to the substantial likelihood that Student’s placement would result in injury to Student or others.
However, Parents are correct that Student is currently without an available educational program for the summer of 2024. Even if, as Newburyport asserts, Parents’ actions have contributed to the current situation, the facts, as presented in the Hearing Request, suggest that Student’s IEP expired on May 1, 2024, and no new IEP has been proposed. As such, Student is without extended school year services for July 2024.
The District’s argument that ESY has been proposed but that a location has yet to be identified is unpersuasive, especially as the extended school year session is imminent, and Parents need time to consider the District’s proposal of placement, which must be specific.3 The Massachusetts regulatory language, regulatory history, and a Massachusetts Department of Education Administrative Advisory make clear that the IEP Team’s placement decision must include a determination of the “specific program setting in which the services will be provided” including the proposed location of the educational program.4 As stated by Hearing Officer Crane in In Re: George and Boston Public Schools,
“the principal vehicle through which parents participate in decision-making regarding their son or daughter’s special education is the IEP Team. It is this group of people which develops the IEP — a written statement that includes the special education and related services to be provided to the student, as well as ‘the anticipated frequency, location , and duration of those services and modifications.’ Parents are members of the IEP Team.
In addition to this IEP process, the IDEA requires that parents be members of any group that makes decisions on the educational placement of their child.
The federal Department of Education (DOE) takes the position that the word ‘location’, as used within the above-quoted language regarding the IEP, refers to the general type of location or environment rather than the specific site or actual location of the services. It follows that once the general type of location is decided within the IEP Team meeting, the separate decision-making process regarding a student’s ‘educational placement’ (which parents must be a part of) would determine the more specific location where the services are actually to be provided.
… [P]arents are entitled to have an opportunity to be members of the group that decides the actual location of their son’s or daughter’s special education and related services.”5
The District’s argument that the location of ESY services was not proposed due to the fault of Parents’ Advocate is not here persuasive, as it is the District’s obligation to make a specific offer to Parents.6
Student’s last accepted IEP has expired, and a new IEP has yet to be proposed. Given Parents’ assertion that the parties agree the ESY program location of the last accepted IEP is not appropriate for the upcoming extended school year session, the District’s argument that “[e]ven if the Parents reject the 2024-2025 IEP, the Student’s “stay put” ESY services remain available for the Student through TLC” is unpersuasive. As such I find that, pursuant to Rule II(D)(1)(c), Issue #7 of Parents’ Hearing Request meets the standard for an accelerated hearing.
ORDER
Parents’ Request is ALLOWED, in part, and DENIED, in part. Specifically, Issue #7 of the Hearing Request will proceed on an accelerated track, and Issues # 1-6 and 8 will proceed on a regular track.
The matter will proceed to hearing on Issue #7 only on July 5, 2024. Exhibits and witness lists are due at by the close of business day on June 29, 2024.
The remaining issues will proceed to hearing on July 10, 2024. Exhibits and witness lists are due at by the close of business day on July 3, 2024.
In addition, the parties will participate in a conference call with the Hearing Officer on June 21, 2024 at 2:30P.M.
So ordered,
By the Hearing Officer,
s/ Alina Kantor Nir
Alina Kantor Nir
Date: June 20, 2024
[1] The information in this section is drawn from the parties’ pleadings and is subject to revision in further proceedings.
2 The District’s Objection states that “Student’s last accepted IEP is aligned to the District’s in-district Therapeutic Learning Center (TLC) which includes an ESY program.”
3 See, e.g., R.E. v. New York City Dep’t of Educ., 694 F.3d 167, 186 (2d Cir. 2012) (“In order for this system to function properly, parents must have sufficient information about the IEP to make an informed decision as to its adequacy prior to making a placement decision. At the time the parents must choose whether to accept the school district recommendation or to place the child elsewhere, they have only the IEP to rely on, and therefore the adequacy of the IEP itself creates considerable reliance interests for the parents”); Union Sch. Dist. v. Smith, 15 F.3d 1519, 1526 (9th Cir. 1994) (“The requirement of a formal, written offer creates a clear record that will do much to eliminate troublesome factual disputes many years later about when placements were offered, what placements were offered, and what additional educational assistance was offered to supplement a placement, if any. Furthermore, a formal, specific offer from a school district will greatly assist parents in ‘present[ing] complaints with respect to any matter relating to the … educational placement of the child’”) (internal citations omitted); E.M. v. Poway Unified Sch. Dist., No. 19CV689 MJ MSB, 2020 WL 229991, at *10-11 (S.D. Cal. Jan. 15, 2020) (“placement offers under IDEA must be formal, written, and specific” and “a school district’s failure to make a sufficiently specific placement offer is a procedural violation of IDEA and a denial of a FAPE if the failure significantly impedes the child’s parents’ opportunity to participate in the decision-making process”); Bookout v. Bellflower Unified Sch. Dist., No. CV 13-2710-SH, 2014 WL 1152948, at *10 (C.D. Cal. Mar. 21, 2014) (“the District’s broad offer of placement did not provide Parents with sufficient information to determine … if [it] was appropriate”); ) A.B. v. San Francisco Unified Sch. Dist., No. C07-4738PJH, 2008 WL 4773417, at *15 (N.D. Cal. Oct. 30, 2008) (because “the IDEA requires a clear written offer that sets forth a sufficiently specific statement of what the actual offered services will be and where, the court found that the school “did not make a clear written offer to plaintiff’s mother for 2004 ESY services” where “the spring 2004 IEP did not document ‘the specifics of the program’”); Glendale Unified School Dist. v. Almasi, 122 F.Supp.2d 1093, 1107 (C.D.Cal.2000) (holding that, where district offered multiple placement options, an undue burden was placed on parents to eliminate potentially inappropriate placements, and the offer of various classrooms did not comply with Union and denied Student a FAPE).
4 See 603 CMR 28.05(6); 603 CMR 28.06(2); 603 CMR 28.06(2)(d); In Re: George and Boston Public Schools (Ruling on Motion for Partial Summary Judgment), BSEA # 04-2506 (Crane, 2004) (discussing the regulations, regulatory history, and state advisory relative to placement decisions by the IEP Team); Administrative Advisory SPED 2001-5: Updating of IEP Process Guide and IEP Form and Notices, dated June 11, 2001, found at: http://www.doe.mass.edu/sped/advisories/01_5.html
5 In Re: George and Boston Public Schools (Ruling on Motion for Partial Summary Judgment), BSEA # 04-2506 (Crane, 2004).
6 See Anchorage School Dist. v. M.P., 689 F.3d 1047, 1055 (9th Cir.2012) (Parents’ unwillingness to consider an SDC did not relieve the District of its obligation to make a specific offer of educational placement).