COMMONWEALTH OF MASSACHUSETTS
BUREAU OF SPECIAL EDUCATION APPEALS
In Re: Joseph1 v. Boston Public Schools
BSEA # 06-3836
DECISION
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 c. 71B), the state Administrative Procedure Act (MGL c. 30A), and the regulations promulgated under these statutes.
Pursuant to BSEA Hearing Rule XII and by agreement of the parties, this Decision is based solely upon stipulations, documents admitted into evidence, and oral argument.
The official record of the hearing consists of documents submitted by the Parents and marked as exhibits P-1 through P-33 (however, exhibit P-33 was admitted for the limited purpose of explaining what is offered in YouthCare’s summer program); documents submitted by the Boston Public Schools (Boston) and marked as exhibits S-1 through S-10; and stipulations of the parties. Oral arguments were made on May 26, 2006, and the record closed on that date.2
PROCEDURAL HISTORY
On March 24, 2006, Parent filed her Hearing Request . She wrote that on October 15, 2004 she had filed a previous Hearing Request with the BSEA in which she took the position that Boston had violated Student’s rights with respect to evaluation and appropriate services. The October 15, 2004 Hearing Request was resolved through a Settlement Agreement signed by the parties on February 9, 2005. Pursuant to the Agreement, Boston was to provide Student with a therapeutic summer program (with transportation) and in-home after-school tutoring.
In her March 24, 2006 Hearing Request , Parent took the position that Boston failed to provide the transportation and tutoring described within the Settlement Agreement, and that Boston further failed to implement fully Student’s IEP during part of the current school year (2005-2006).
By agreement of the parties, the original Hearing date of April 28, 2006 was changed to a Pre-Hearing Conference at the BSEA offices and the Hearing date was re-scheduled for May 25, 2006.
On May 15, 2006, Boston filed a Motion to Dismiss , taking the position that there are no issues in dispute between the parties other than attorney fees, and the BSEA lacks jurisdiction over attorney fees. Boston argued that it had offered to provide compensatory services for “exactly the amount requested by the Parent in her initial demand for settlement and given that this amount compensates the Student for all periods of dispute as outlined in the Parent’s Request for Hearing , there are no further issues for the BSEA to decide.”
After a Motion Hearing on May 22, 2006, I issued a ruling on the same day, denying the Motion to Dismiss . My ruling found that there remained substantive issues of fact that are in dispute, that the parties have not resolved the question of the relief to be provided as well as other terms of a possible settlement, and that some or all of the disputed issues fall within the jurisdiction of the BSEA. I also found persuasive Parent’s argument that it would be inappropriate for me to dismiss part or all of the case based on Boston’s representations that it would provide certain requested services where the parties had not entered into an agreement to that effect.
Because of the apparent likelihood that the disputed issues and relief could be further narrowed and/or the live testimony shortened or eliminated, I ordered Parent to file detailed proposed findings of fact and relief. I ordered Boston to respond, either agreeing or disagreeing, with an explanation as to the reasons for any disagreements. This process resulted in the stipulations reflected below.
During a conference call on May 24, 2006, the parties agreed that the May 25, 2006 Hearing would not include any live testimony and that the dispute would be resolved through stipulations, documentary evidence, and argument.
ISSUES
The issues to be decided in this case are the following:
1. Did Boston fail to provide services that the parties agreed upon for purposes of settling a dispute before the BSEA; and if so, what relief should be provided?
2. Did Boston fail to implement Student’s IEPs; and if so, what relief should be provided?
PROFILE
Student began this current school year in 6 th grade at the King Middle School in Dorchester, MA, where he received special education services for reading, math, speech, and occupational therapy. Student was then placed at the Lewis Middle School in a substantially separate program. Exhibits S-2, P-23 (current IEP).
Student is considered to be angry and depressed with low self-esteem and impulse tendencies. Student would benefit from a small, therapeutic, highly structured classroom setting. Exhibits S-2, P-23.
STIPULATIONS
1. Parent and Boston Public Schools (Boston) executed a Release and Settlement Agreement (“Settlement Agreement”) on February 9, 2005.
2. The Settlement Agreement required Boston to provide Student with two summers of a therapeutic summer program, including door-to-door transportation, for the 2005 and 2006 summers.
3. The Settlement Agreement required Boston to provide Student with four hours per week of in-home, after-school tutoring services for the entirety of the 2005-2006 school year during the weeks that school is in session.
4. Boston did not provide door-to-door transportation to and from Student’s therapeutic summer program between June 30, 2005 and July 20, 2005.
5. Boston did not provide Student with any in-home, after-school tutoring services from September 8, 2005 until on or about April 26, 2006. The parties disagree as to the reasons why this occurred.
6. The service delivery grid for Student’s IEP for the period January 2005 to June 2005 provided for the following special education and related services:
· Resource room instruction in math for 60 minutes per day, 5 days per week.
· Resource room instruction in language arts for 60 minutes per day, 5 days per week.
· Speech and language therapy for 30 minutes per day, 1 day per week.
· Occupational therapy for 30 minutes per day, 1 day per week.
· Psychological counseling for 30 minutes per day, 1 day per week.
· Social skills group led by a school psychologist 15 minutes per day, 1 day per week.
· Behavioral and social/emotional supports for 25 minutes per day, 5 days per week.
· Consultation for Student’s teacher from a behavioral specialist for 15 minutes per day, 1 day per month.
· Door-to-door transportation.
Although Parent rejected certain parts of this IEP, Parent accepted all of the above-described services. Exhibit P-4.
7. The service delivery grid for Student’s IEP for the period September 2005 to May 2006 provided for the following special education and related services:
· Resource room instruction in math for 45 minutes per day, 5 days per week.
· Resource room instruction in language arts for 45 minutes per day, 5 days per week.
· Psychological counseling for 30 minutes per day, 1 day per week.
· Social skills group led by a school psychologist 15 minutes per day, 1 day per week.
· Behavioral and social/emotional supports for 25 minutes per day, 5 days per week.
· Consultation for Student’s teacher from a behavioral specialist for 15 minutes per day, 1 day per month.
· Door-to-door transportation.
Parent signed this IEP, accepting all of the above-described services, on October 12, 2005. The IEP took effect on that date. Exhibits S-1, P-20.
8. Boston did not provide door-to-door transportation to and from school pursuant to Student’s IEP between September 8, 2005 and on or about December 1, 2005.
9. Boston did not provide Student with psychological counseling pursuant to the terms of the IEP during the following weeks: September 26, 2005; October 3, 2005; October 24, 2005; October 31, 2005; November 7, 2005; November 14, 2005; November 28, 2005; December 12, 2005; and December 19, 2005.
10. Boston did not provide Student with occupational therapy pursuant to the terms of the IEP during the following weeks: September 12, 2005; September 19, 2005; and October 3, 2005.
11. Student no longer receives occupational therapy services.
12. $119.01 would reimburse Parent for transportation provided by Parent to and from Student’s therapeutic summer program between June 30, 2005 and July 20, 2005. (30.36 miles per day x 14 days x $0.28 per mile = $119.01.)
13. $112.56 would reimburse Parent for transportation provided by Parent to and from King Middle School between September 8, 2005 and on or about December 1, 2005. (6 miles per day x 67 days x $0.28 per mile = $112.56.)
14. Twenty-eight weeks of in-home after-school tutoring services at 4 hours per week would compensate Student for 112 hours of missed tutoring services.
15. Nine sessions of psychological counseling at 30 minutes per session would compensate Student for 9 weeks of missed counseling.
16. Three sessions of occupational therapy at 30 minutes per session would compensate Student for 3 weeks of missed occupational therapy.
17. Twelve sessions of psychological counseling may be provided in lieu of 9 sessions of counseling and 3 sessions of occupational therapy.
FINDINGS OF FACT
1. Pursuant to the IEPs for the time period when services were missed (September 2005 to December 2005), Student was to receive counseling services for 30 minutes, once each day, for the purpose of addressing IEP goal # 1. Goal # 1, entitled “social emotional skills”, provides for the following measurable goal: “Student will improve social emotional skills, in the area(s) of: — interpersonal relations, emotionality”. Exhibits S-1, P-4, P-20.
2. Pursuant to the IEP for the first half of the 2006-2007 school year, Student is to receive counseling services for 30 minutes, once each day, for the purpose of addressing IEP goal # 1. Goal # 1, entitled “social emotional skills”, provides for the following measurable goal: “Student will improve social emotional skills, in the area(s) of: — emotionality, personal development, conversation/communications”. Exhibits S-2, P-23.
3. Pursuant to Student’s current IEP, he is to be placed at a substantially separate, therapeutic program for the 2006-2007 school year. Exhibits S-2, P-23.
4. The YouthCare program that Student will attend for the summer of 2006 offers a therapeutic day camp that includes both traditional camp activities (for example, boating) and approximately four therapeutic groups each week. The therapeutic groups focus on social language (or speech pragmatics) and social skills. These groups are structured to teach the concrete steps of (and the skills for) successful communication and interaction, and to apply them in supportive settings throughout the camp day. The YouthCare summer program does not provide individual psychological support, but collaborates with any outside providers (including those providing individual counseling to campers) to assure a smooth continuum of services and to support the transfer or generalization of skills or strategies between home, school, camp, and community settings. Exhibit P-33.
DISCUSSION
Introduction .
Student is an individual with a disability, falling within the purview of the Individuals with Disabilities Education Act3 and the state special education statute.4 As such, Student is entitled to a free appropriate public education (FAPE).5 Neither his eligibility status nor his entitlement to FAPE is in dispute. FAPE requires that a student’s individualized education program (IEP) be tailored to address the student’s unique needs in a way reasonably calculated to enable the student to make meaningful and effective educational progress in the least restrictive environment.6
Jurisdiction regarding claims under the settlement agreement .
Part of the instant dispute concerns Parent’s claims for compensatory relief for violation of the Settlement Agreement, which was entered into by the parties for the purpose of resolving a previous dispute before the BSEA regarding special education and related services. Stipulation paras. 1, 2, 3. All of Student’s claims under the Settlement Agreement relate to “ the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to such child ”.7 Stipulation paras. 2, 3, 4, 5. These claims therefore fall within the IDEA’s grant of jurisdiction to a BSEA Hearing Officer.8
In contrast to a court’s jurisdiction that includes enforcement of a settlement agreement regarding a dispute under the IDEA, the BSEA Hearing Officer’s jurisdiction may not extend to enforcement because a hearing officer has no mechanism to enforce an agreement (for example, through powers of contempt), just as he/she has no mechanism to enforce an IEP or to enforce a decision of a BSEA Hearing Officer.9 However, similar to a federal court’s jurisdiction in an IDEA dispute, a Hearing Officer’s jurisdiction may include consideration of the legal implications of an agreement with respect to parents’ special education rights, and the Hearing Officer may issue orders stating what a school district must do in order to comply with these rights.10
For these reasons, I conclude that although I do not have the authority to force Boston to comply with the Settlement Agreement, I may consider whether Boston has complied with the terms of the agreement; and I may issue an order relative to any compensatory claims that Parent may have relative to compliance with the agreement in the same manner that I may issue an order relative to any compensatory claims relative to compliance with the IEPs in this dispute.
Compensatory claims .
This dispute involves compensatory claims for alleged failure to implement the terms of the Settlement Agreement and alleged failure to implement accepted portions of IEPs.
Compensatory services are essentially a remedy designed to make Student whole – that is, to make up for what was lost as a result of not having received the requisite special education services.11 As one federal court has instructed, the decision-maker needs to make “an informed and reasonable exercise of discretion regarding what services [Student] needs to elevate him to the position he would have occupied absent the school district’s failures.”12 This may include future services to make up for what was lost.13
It is not disputed that Boston failed to implement the terms of the Settlement Agreement in two respects. First, Boston did not provide Student with door-to-door transportation to and from Student’s therapeutic summer program between June 30, 2005 and July 20, 2005. Second, Boston did not provide Student with any in-home, after-school tutoring services from September 8, 2005 until on or about April 26, 2006. Stipulations paras. 1, 2, 3, 4, 5.
It is not disputed that Boston failed to implement the accepted portions of IEPs in three respects. First, Boston did not provide Student with door-to-door transportation to and from school between September 8, 2005 and on or about December 1, 2005. Second, Boston did not provide Student with psychological counseling during the following weeks: September 26, 2005; October 3, 2005; October 24, 2005; October 31, 2005; November 7, 2005; November 14, 2005; November 28, 2005; December 12, 2005; and December 19, 2005. Third, Boston did not provide Student with occupational therapy during the following weeks: September 12, 2005; September 19, 2005; and October 3, 2005. Stipulations paras. 8, 9, 10.
I now consider what compensation is due Parent and Student regarding missed transportation, tutoring, psychological counseling and occupational therapy.
Transportation .
As discussed above, Parent transported her son to and from his summer program and to and from school because of Boston’s failure to do so. The Massachusetts special education regulations explain what relief is due under these circumstances:
When a parent provides transportation . If a parent provides transportation to an eligible student requiring special transportation consistent with the requirements of 603 CMR 28.05(5)(b), the school district shall reimburse such parent the prevailing rate per mile for state employees. Reimbursement shall be for no more than the round-trip distance between the home and the school for school attendance and school-sponsored extracurricular activities. Mileage shall be determined based on a direct route between the student’s home and school. No parent shall be obligated to provide such transportation.14
Applying these regulatory standards to the instant dispute, I find that Boston must reimburse Parent at the following mileage rates, which reflect the prevailing rates per mile for Massachusetts Department of Education employees:
$0.28 from June 30, 2005 to July 9, 2005
$0.30 from July 10, 2005 to September 11, 2005
$0.40 from September 12, 2005 to December 1, 2005.15
From June 30, 2005 to July 9, 2005, Parent transported her son 30.36 miles per day for 7 days to and from the therapeutic summer program. Stipulation para. 12. Applying the mileage rate of $0.28, Boston must reimbursement Parent $59.51.
From July 10, 2005 to July 20, 2005, Parent transported her son 30.36 miles per day for 7 days to and from the therapeutic summer program. Stipulation para. 12. Applying the mileage rate of $0.30, Boston must reimbursement Parent $63.76.
From September 8, 2005 to September 11, 2005, Parent transported her son 6 miles per day for 2 days to and from King Middle School. Stipulation para. 13. Applying the mileage rate of $0.30, Boston must reimbursement Parent $3.60.
From September 12, 2005 to December 1, 2005, Parent transported her son 6 miles per day for 65 days to and from King Middle School. Stipulation para. 13. Applying the mileage rate of $0.40, Boston must reimbursement Parent $156.00.
Boston must reimburse Parent for transportation for a total amount of $282.87.
Tutoring .
As discussed above, Boston did not provide Student with any in-home, after-school tutoring services from September 8, 2005 until on or about April 26, 2006. The Settlement Agreement required Boston to provide 4 hours per week of tutoring during this time period. Boston failed to provide Student with a total of 112 hours of tutoring. Stipulations paras. 3, 5, 14.
To compensate for this omission, Boston must provide Student with 4 hours per week of in-home, after-school tutoring services for 28 weeks.
Psychological counseling and occupational therapy services .
As discussed above, Boston failed to provide Student with a total of 9 sessions of psychological counseling at 30 minutes per session during the time period from September 26, 2005 to December 19, 2005. Stipulations paras. 9, 15.
Also, Boston failed to provide Student with a total of 3 sessions of occupational therapy at 30 minutes per session during the time period from September 12, 2005 to October 3, 2005. Stipulations paras. 10, 16.
The parties agreed that sufficient additional psychological counseling may be provided to make up for both the missed psychological counseling and the missed occupational therapy. Stipulation para. 17.
Accordingly, to compensate for these omissions, Boston must provide Student with 12 weekly sessions of psychological counseling at 30 minutes per session.
Timing of compensatory psychological counseling .
The parties disagree as to when the compensatory psychological counseling should take place. Boston argues that it should occur during the 2006-2007 school year since this service is intended to address school-based issues. Parent argues that it should occur during Student’s summer program. For the reasons explained below, I agree with Parent.
As discussed above, the purpose of compensatory services is to make Student whole – that is, to make up for what was lost as a result of not having received the requisite special education services.
As a result of Boston’s failures, Student more often than not was without needed psychological counseling services during the time period from September 26, 2005 to December 19, 2005. It is this loss that the compensatory services are intended to remedy.
The psychological counseling services in Student’s IEP were originally intended to help address his interpersonal relations and emotionality. Findings of Fact para. 1. During this coming summer, Student’s therapeutic day camp will seek to address some of these same concerns – that is, Student’s social skills, including successful communication and interaction with others. The camp does not provide individual psychological counseling but would collaborate with an outside provider of these services to further support the generalization of skills. Findings of Fact para. 4. Under these circumstances, the addition of individual psychological counseling to the work of the camp would be a welcome (and non-duplicative) complement to its therapeutic program, providing Student with benefits similar to what he would likely have received had the counseling been provided from September 26, 2005 to December 19, 2005.
In contrast, providing the compensatory psychological counseling services during the next school year would essentially double the recommended service delivery regime. Findings of Fact paras. 2, 3. It therefore seems likely that providing the compensatory services during the next school year would result in Student’s receiving more psychological services than are necessary, reducing the marginal benefit of the compensatory services.
I find that providing the compensatory psychological counseling services during the summer of 2006, rather than during the 2006-2007 school year, is significantly more likely to make up for what was lost as a result of not having received these services during the 2005-2006 school year.
ORDER
Boston shall reimburse Parent for travel in the amount of $282.87.
Boston shall provide Student with 4 hours per week of in-home after-school tutoring services for 28 weeks.
Boston shall provide Student with 12 weekly sessions of psychological counseling at 30 minutes per session. To the extent possible, Boston shall provide these services during the summer of 2006.
By the Hearing Officer,
William Crane
Dated: June 6, 2006
COMMONWEALTH OF MASSACHUSETTS
BUREAU OF SPECIAL EDUCATION APPEALS
EFFECT OF BUREAU DECISION AND RIGHTS OF APPEAL
Effect of the Decision
20 U.S.C. s. 1415(i)(1)(B) requires that a decision of the Bureau of Special Education Appeals be final and subject to no further agency review. Accordingly, the Bureau cannot permit motions to reconsider or to re-open a Bureau decision once it is issued. Bureau decisions are final decisions subject only to judicial review.
Except as set forth below, the final decision of the Bureau must be implemented immediately. Pursuant to M.G.L. c. 30A, s. 14(3), appeal of the decision does not operate as a stay. Rather, a party seeking to stay the decision of the Bureau must obtain such stay from the court having jurisdiction over the party’s appeal.
Under the provisions of 20 U.S.C. s. 1415(j), “unless the State or local education agency and the parents otherwise agree, the child shall remain in the then-current educational placement,” during the pendency of any judicial appeal of the Bureau decision, unless the child is seeking initial admission to a public school, in which case “with the consent of the parents, the child shall be placed in the public school program”. Therefore, where the Bureau has ordered the public school to place the child in a new placement, and the parents or guardian agree with that order, the public school shall immediately implement the placement ordered by the Bureau. School Committee of Burlington, v. Massachusetts Department of Education , 471 U.S. 359 (1985). Otherwise, a party seeking to change the child’s placement during the pendency of judicial proceedings must seek a preliminary injunction ordering such a change in placement from the court having jurisdiction over the appeal. Honig v. Doe , 484 U.S. 305 (1988); Doe v. Brookline , 722 F.2d 910 (1st Cir. 1983).
Compliance
A party contending that a Bureau of Special Education Appeals decision is not being implemented may file a motion with the Bureau of Special Education Appeals contending that the decision is not being implemented and setting out the areas of non-compliance. The Hearing Officer may convene a hearing at which the scope of the inquiry shall be limited to the facts on the issue of compliance, facts of such a nature as to excuse performance, and facts bearing on a remedy. Upon a finding of non-compliance, the Hearing Officer may fashion appropriate relief, including referral of the matter to the Legal Office of the Department of Education or other office for appropriate enforcement action. 603 CMR 28.08(6)(b).
Rights of Appeal
Any party aggrieved by a decision of the Bureau of Special Education Appeals may file a complaint in the state superior court of competent jurisdiction or in the District Court of the United States for Massachusetts, for review of the Bureau decision. 20 U.S.C. s. 1415(i)(2).
An appeal of a Bureau decision to state superior court or to federal district court must be filed within ninety (90) days from the date of the decision. 20 U.S.C. s. 1415(i)(2)(B).
Confidentiality
In order to preserve the confidentiality of the student involved in these proceedings, when an appeal is taken to superior court or to federal district court, the parties are strongly urged to file the complaint without identifying the true name of the parents or the child, and to move that all exhibits, including the transcript of the hearing before the Bureau of Special Education Appeals, be impounded by the court. See Webster Grove School District v. Pulitzer Publishing Company , 898 F.2d 1371 (8th Cir. 1990). If the appealing party does not seek to impound the documents, the Bureau of Special Education Appeals, through the Attorney General’s Office, may move to impound the documents.
Record of the Hearing
The Bureau of Special Education Appeals will provide an electronic verbatim record of the hearing to any party, free of charge, upon receipt of a written request. Pursuant to federal law, upon receipt of a written request from any party, the Bureau of Special Education Appeals will arrange for and provide a certified written transcription of the entire proceedings by a certified court reporter, free of charge.
1
“Joseph” is a pseudonym chosen by the Hearing Officer to protect the privacy of the Student in publicly available documents.
2
Parent was represented by Michael Gregory of the Hale and Dorr Legal Services Center of Harvard Law School. Boston was represented by Andrea Alves Thomas.
3
20 USC 1400 et seq .
4
MGL c. 71B.
5
20 USC 1400(d)(1)(A); 20 USC 1412(a)(1)(A); MGL c. 71B, ss. 2, 3.
6
In re: Arlington , 37 IDELR 119, 8 MSER 187, 193-195 (SEA MA 2002) (collecting authorities).
7
20 USC 1415(b)(6)(A) (IDEA language defining a hearing officer’s jurisdiction).
8
In Re: Norwood , BSEA # 06-0214, 11 MSER 161, 105 LRP 41921 (MA SEA 2005) (collecting authorities and considering this issue under IDEA 2004); In Re: Boston Public Schools & Waltham Public Schools , BSEA # 02-4323, 8 MSER 396, 102 LRP 39658 (SEA MA 2002) (ruling) (collecting authorities).
9
Compare 20 USC 1415(e)(2)(F) and 1415(f)(1)(B)(iii) (language added by IDEA 2004, providing for judicial enforcement of settlement agreements with respect to disputes under the IDEA) with A.R. v. New York City Department of Education , 407 F.3d 65, n.13 (2 nd Cir. 2005) (although the terms of a special education Hearing Officer’s decision are enforceable by a court, “[Hearing Officers], as is common in administrative procedures, have no enforcement mechanism of their own”).
10
See decision and ruling cited in footnote 8 above with respect to a Hearing Officer’s jurisdiction regarding agreements. Federal courts have routinely taken into consideration an agreement for purposes of determining parents’ rights (and a school district’s obligations) under the IDEA even though specific language regarding a court’s authority regarding agreements was included, for the first time, in IDEA 2004. For example, the First Circuit concluded that an agreement addressed and extinguished parent’s claim for attorney fees under the IDEA. Alison H. v. Byard , 163 F.3d 2 (1 st Cir. 1998). See also, e.g., Amy S. v. Danbury Local School District , 2006 U.S. App. LEXIS 8215 (6 th Cir. 2006); W. B. v. Matula , 67 F.3d 484 (3rd Cir. 1995); R. by M.R. v. East Brunswick Bd. of Educ., 838 F.Supp. 184, 193 (D.N.J. 1993), aff’d, 109 F.3d 896 (3d Cir. 1997).
11
Pihl v. Mass. Dept. of Ed. , 9 F.3d 184 (1 st Cir. 1993) (“compensatory education is available to remedy past deprivations”); Lester H. v. Gilhool, 916 F.2d 865 (3rd Cir. 1990), cert. denied 499 U.S. 923, 111 S.Ct. 317 (1991) (compensatory education is intended to be “an appropriate remedy to cure the deprivation of a child’s right to a free appropriate public education”); Miener v. State of Missouri , 800 F.2d 749 (8th Cir. 1986) (compensatory education intended to cure the deprivation of a handicapped child’s statutory rights).
12
Reid v. District of Columbia, 401 F.3d 516 (D.C. Cir. 2005).
13
Pihl v. Mass. Dept. of Ed. , 9 F.3d 184 (1 st Cir. 1993) (The IDEA “may require services at a future time to compensate for what was lost”).
14
603 CMR 28.07(6).
15
This information is taken from travel forms for Mass. DOE employees.