COMMONWEALTH OF MASSACHUSETTS
BUREAU OF SPECIAL EDUCATION APPEALS
In Re: Tallulah1 & Ipswich Public Schools
BSEA #11-9243
DECISION
This Decision is issued pursuant to M.G.L.c.71B and 30A, 20 U.S.C.§1401, et seq ., 29 U.S.C. §794 and the regulations promulgated under those statutes. A hearing was held in the above-entitled matter on January 18, 2012 at the Department of Elementary & Secondary Education in Malden, MA. Present for the proceedings were:
Ms. T. Parent
Cindy Currier Special Education Dept., Ipswich Public Schools
Mary Gallant Attorney/Special Education Director, Ipswich Public Schools
Lindsay Byrne Hearing Officer/BSEA
The official record of the hearing consists of exhibits introduced by the School marked S-1 through S-9 and S-11 through S-16 and approximately 1 ½ hours of recorded oral testimony and argument. The Parent was pro se throughout the course of the appeal and the Hearing. She did not submit any Hearing exhibits in compliance with BSEA Rule IX, BSEA Rule X and 20 U.S.C. §1415 (f). The Parent was the sole witness at the Hearing. The School was represented by attorney Mary Gallant who acts as both the District’s Special Education Director and its legal representative in special education matters. Prior to the commencement of the Hearing, the Parent requested leave to “reformulate” the issue presented for resolution. The School objected. The Hearing Officer noted that the statement of the issue had been agreed upon during a prehearing conference held on July 7, 2011 and memorialized in scheduling orders issued on July 11, 2011, September 13, 2011 and January 4, 2012. The Parent had not lodged any then contemporaneous objections and did not on the day of hearing present any compelling argument or proffer any newly discovered evidence which might warrant a change in the issue. Therefore the Parent’s request was DENIED .
At the conclusion of the Parent’s testimony the School moved for a Directed Verdict. Due to the Parent’s pro se status the School’s Motion was DENIED . Neither party elected to submit oral or written closing arguments. The official record therefore closed on January 18, 2012.
ISSUE :
Whether the Parents are entitled to reimbursement of expenses they incurred in securing individual tutoring services for the Student through the Commonwealth Learning Center during the summer of 2011?
SUMMARY OF THE EVIDENCE
The pertinent facts are not in dispute and may be briefly summarized:
1) Tallulah is a fifteen year old 9th grade student who has been receiving special education services through the Ipswich Public Schools for at least four years. She has documented disabilities in the areas of oral and written language processing and production, executive functions and memory. She has been diagnosed with a language learning disability and dyslexia. Neither her entitlement to special education services nor the type or level of appropriate special education services is in dispute.
2) The last accepted IEP for Tallulah covered the 2008-2009 school year when Tallulah was in the 6th grade.2 In addition to academic year services, that IEP provided for one to one tutoring in math and reading during the summer 2009 between the 6th and 7th grades. Page 13 of that IEP contains the following statement:
Longer year: [Tallulah] will receive 1:1 tutoring to prevent significant regression in the areas of reading and math 2×2 hrs/wk for 5 weeks with a special education teacher employed by the district.
The Parent accepted the 2008-2009 IEP on June 1, 2009. (S-14)
3) Tallulah participated in the district’s summer tutoring program during July 2009. In addition she received tutoring in August 2009 through the Commonwealth Learning Center. That service was arranged and funded by the Parent. There is no evidence that the Parent requested additional summer tutoring hours from the district nor that the Parent requested that the district assume responsibility for the summer 2009 tutoring provided by the Commonwealth Learning Center. (S-14; Parent)
4) The Team reconvened on November 18, 2009 and developed a new IEP for the 2009-2010 school year. That proposed IEP retained the summer services provision of the previously accepted 2008-2009 IEP. The proposed 2009-2010 IEP was not accepted by the Parent during its term. (S-13; Parent)
5) During the spring 2010 Ipswich became aware that it could not provide the in-district summer tutoring services to Tallulah due to its personnel circumstances. In lieu of providing its own special education services Ipswich offered to fund up to 15 fifty minute tutoring sessions for Tallulah at Commonwealth Learning Center, along with reimbursement for the Parent’s transportation expenses. This arrangement was offered in two letters sent by the district to the Parent. No Team meeting was held and no IEP Amendment was issued to reflect the change in service. (S-12; S-11; Parent) The Parent testified that she orally accepted the funding and the transportation reimbursement. There is no written response from the Parent in the record. Tallulah received the offered hours of tutoring at the Commonwealth Learning Center in the summer 2010.
(Parent, S-9; S-8, S-6; S-3)
6) The Team reconvened on November 16, 2010. The Team developed a 2010-2011 IEP including the following statement:
Longer year: [Tallulah] will receive 1:1 tutoring to prevent significant regression in the areas of reading and math. A Team meeting will be scheduled for the spring of 2011, including the Program Manager from the High School, to discuss summer programming needs.(S-9).
7) The Parent accepted some of the special education services proposed under the 2010-2011 IEP and rejected others. With regard to summer services the Parent wrote:
The Parents feel the CLC [Commonwealth Learning Center] services are currently part of the IEP. The district chose not to include the IEP [sic] CLC services were agreed as appropriate, and paid for.
(S-8)
8) The Team reconvened on March 28, 2011. The Team developed an IEP indicating that Tallulah was determined to be ineligible for extended year services. (S-6) There is no evidence of a timely Parental response to this proposed IEP in the record and it is considered rejected.
9) The Team reconvened on June 7, 2011. The Parent did not attend due to family illness. The Parent gave consent for the meeting to proceed, indicated she would submit questions and/or observations at the end of the meeting and was provided with a written transcript of the meeting. The Team discussed whether Tallulah required extended year special education services in order to prevent regression in acquired skills. The Team determined she did not. (Parent; S-6)
10) On June 7, 2011 Ipswich wrote to the Parent alerting her that summer tutoring services had been scheduled for Tallulah at the High School three times per week for 1 hour 45 minutes each session during July. (S-5)
11) On June 21, 2011 Ipswich sent a second notice concerning summer tutoring services to the parent. This notice also stated that the tutor would be Ms. Diodatti, Tallulah’s school year special education teacher, with whom she had a good, productive relationship. (S-4; Parent)
12) On June 21, 2011 the Parent submitted an IEP response sheet to the district. It is unclear whether the response sheet is part of the 3/11 – 3/12 proposed IEP developed at the March, 2011 meeting or a later proposed Amendment developed at the June 7, 2011 meeting. The Parent checked the rejected in full box. She wrote, among other things:
The current IEP is the amended 08-09 IEP…IPS has delayed discussion of ESY services. We will be enrolling [Tallulah] at the Commonwealth Learning Center for all her longer year services and we further request reimbursement for mileage and tutoring services. (S-3)
13) Tallulah attended one session of tutoring at the Commonwealth Learning Center during the summer 2011 at a cost to the Parent of $70.00. Tallulah participated in the district’s summer tutoring program during July 2011. The Parent testified that the focus, methods and strategies employed by the tutor at the Commonwealth Learning Center were identical to those used by Ipswich personnel in Tallulah’s school year and summer special education services. (Parent)
14) The Parent testified that the last IEP that had been accepted was the one covering the 2008-2009 school year. (S-14) The Parent acknowledged that the summer services under that IEP consisted of 1:1 tutoring with a teacher provided by the Ipswich Public Schools. The Parent further acknowledged that the district had never developed or offered an IEP providing for summer services through the Commonwealth Learning Center. As a working advocate trained by the Federation for Children With Special Needs, the Parent testified that she was aware that the School is obligated to implement the terms of the last agreed upon IEP. Nevertheless, the Parent stated she believed Tallulah had “stay put” rights to summer services at the Commonwealth Learning Center because the district had funded them during the summer 2010 when it was unable to staff its own tutoring services. (Parent)
FINDINGS AND CONCLUSIONS
There is no dispute that Tallulah is a student with special learning needs and is thus entitled to receive a free appropriate public education pursuant to M.G.L. c.71B and 20 U.S.C.§1401 et seq . The issue here is quite narrow: Whether the principle of “stay put” requires Ipswich to reimburse the Parent’s out-of-pocket expenses associated with Tallulah’s attendance at one tutoring session at the Commonwealth Learning Center during the summer 2011. After careful consideration of all the evidence in this matter, and of the applicable law, it is my determination that it does not. My reasoning follows:
Federal and state special education laws outline a variety of “procedural protections” designed to ensure that the actual special education services for a student with disabilities are not disrupted in the event a dispute arises between the student’s parents and the responsible school district. Among these procedural protections is the guarantee that a student will continue to receive the special education services in the setting that the parents and school district had most recently agreed were appropriate for the student while the parties resolve any disagreement. This concept is familiarly referred to as “stay put”. Under federal law once a parent initiates a due process proceeding, the student’s “stay put” rights attach.3 Massachusetts extends “stay put” protections to eligible students whenever the parents and responsible school districts disagree even apart from formal due process proceedings under the IDEA and M.G.L c71B. Uxbridge Public Schools , 16 MSER 334 (2010).4
Generally a student’s “stay put” placement and services may be determined by referring to the last IEP developed by the School and accepted by the Parent(s). That IEP represents the agreement of the parties about what constitutes a free appropriate public education for a student. Doe v. Brookline School Committee , 722 F.2d910 (1st Cir. 1983). The school district has a continuing responsibility to implement the terms of that last agreed upon IEP until another IEP is developed by the district and accepted by the Parent(s) or until directed otherwise by a Decision of an administrative due process agency or a court. Thus “stay put” services are rooted in a written determination of an individual student’s free appropriate public education.
Here there is no dispute that the last accepted IEP for Tallulah provided for 4 hours per week of individual tutoring by district personnel in reading and math for a five week period during the summer vacation. Furthermore the parties agree that the summer services provision of the 2008-2009 IEP has not been the subject of any IEP Amendment. Therefore the extended school year provision of the 2008-2009 IEP remains Tallulah’s “stay put” placement unless and until a different arrangement is agreed upon or ordered.
The Parties also agree that Tallulah has received tutoring services consistent with that 2008-2009 IEP each subsequent summer. During the summer 2009 Tallulah participated in tutoring through Ipswich Public Schools. During the summer 2010 Tallulah participated in tutoring at the Commonwealth Learning Center arranged and funded by the Ipswich Public Schools. The Parent argued that when the district offered substitute tutoring services at the Commonwealth Learning Center during the summer of 2010, it became obligated to continue those precise, out-of-district services, under the doctrine of “stay put”. I disagree. The district’s offer to fund the summer services at Commonwealth Learning Center was made in response to its anticipation of district personnel shortages. The district took a proactive position, ensuring that Tallulah would continue to receive the type and amount of direct special education service during the summer the Team had previously agreed was appropriate and which was reflected on the last accepted IEP. The district responsibly arranged a program of “comparable” summer services with a facility it knew to be acceptable to the Parent, thus averting any potential cessation or diminution of special education to the Student. Knight by Knight v. District of Columbia, 877 F.2a 1025 (DC Cir. 1989). The concept of “stay put” attaches to the type and level of the special education service and program, not to a specific physical location. Spilsburg v. District of Columbia , 307 F. Supp. 2d 22 (D.D.C. 2004). Here, where the Parent has acknowledged that the personnel, content, and frequency of the summer tutoring services provided by Ipswich and by Commonwealth Learning Center were nearly identical and Tallulah actually participated in them, there is no procedural misstep. Indeed the record demonstrates that Ipswich has exceeded its “stay put” responsibility to provide at least 20 hours of 1:1 tutoring to Tallulah during the summer 2011. The parties never amended the 2008-2009 IEP to reflect a change in tutoring location or personnel. When the staffing shortage that had prompted substitute service at the Commonwealth Learning Center during the summer 2010 was resolved, the district properly returned to the agreed upon language of the “stay put” IEP by arranging in-district summer 2011 tutoring services for Tallulah.
I therefore find that the district properly discharged its “stay put” obligations to Tallulah during the summer 2011 in compliance with 20 U.S.C.§1415(j) and 603 CMR 28.08 (7) by offering her 1:1 tutoring services by district personnel consistent with and/or exceeding those set out in her last accepted IEP.
ORDER
The Parent is not entitled to reimbursement for out-of-pocket expenses she incurred in arranging for individual tutoring services for the Student at the Commonwealth Learning Center during the summer 2011.
By the Hearing Officer
_______________________
Dated: January 30, 2012
1
“Tallulah” is a pseudonym chosen by the Hearing Officer to protect the privacy of the Student in documents available to the public.
2
School year services are not relevant to the issue presented for Decision in this matter and will not be discussed.
3
The federal stay put protections are set out at 20 U.S.C.§1415(j):
during the pendency of any proceedings conducted pursuant to this section, unless the State or local education agency and the parents otherwise agree, the child shall remain in the then-current education placement of the child;
and at 34 CFR §300.518:
unless the State and local agency and the parents of the child agree otherwise, the child involved in the complaint must remain in his or her current educational placement.
See discussion of stay-put protections (which remained the same from the IDEA to IDEA 2004) in Verhoeven v. Brunswick School Committee , 207 F.3d I (1st Cir. 1999).
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4
603 CMR 28.8(7) provides:
In accordance with state and federal law, during the pendency of any dispute regarding placement or services the eligible student shall remain in his or her then current education program and placement unless the parents and the school district agree otherwise.