COMMONWEALTH OF MASSACHUSETTS
DIVISION OF ADMINISTRATIVE LAW APPEALS
BUREAU OF SPECIAL EDUCATION APPEALS
In Re: Khaled1 and Northampton Public Schools
BSEA #07-2902
RULING
This matter comes before the Bureau of Special Education Appeals (Bureau) on the Parents’ Motion for an Interim Order, filed on September 3, 2010 and the School’s Opposition thereto. A hearing was held on October 15, 2010, at which the parties presented oral arguments and the testimony of one witness. In addition the Parents submitted documents labeled P-1 through P-7 in support of their Motion.
A brief review of the factual and procedural background is necessary to place the Parents’ Motion in context. There is a long history of both conflict and cooperation between the parties. Khaled is a nine year old student with substantial, multiple disabilities. Until April 2010, Khaled attended a local public school and received intensive special education, accommodations and related therapeutic services along with inclusion in a mainstream third grade class. The Parents withdrew Khaled from school at the end of March 2010 and provided a home-based education program for him for the remainder of the 2009-2010 school year and during the summer of 2010. Their request for public funding of the home education program was denied on September 1, 20102 .
As it became apparent during the winter and spring 2010 that the Parents were dissatisfied with Khaled’s public school-based program the parties explored both day and residential alternatives. They eventually agreed that a residential placement at the Perkins School would be appropriate for Khaled. In April 2010 the Perkins School accepted Khaled as a residential student. A starting date of September 7, 2010 was selected.
By way of the original Motion for an Interim Order the Parents sought:
1. the authority to select the transportation company;
2. mileage reimbursement for unscheduled home visits (such as for illness) as well as for parent attendance at meetings, trainings, etc.;
3. reimbursement for Parents’ overnight accommodations near Perkins when they attend meetings;
4. reimbursement for the cost of hiring an aide/monitor to accompany the student on parentally provided transportation;
5. transportation or transportation reimbursement to/from weekly appointments with assistive technology/augmentative communication specialists;
6. an allowance of $700 per year for purchase of dedicated assistive technology/adapted care equipment to be used at Perkins;
7. provision of a laptop and software identical to that currently used by Khaled at home for his use at Perkins;
8. addition of an identified augmentative communication consultant to the Perkins program;
The Parents later orally amended their request to include:
9. reimbursement of all expenses incurred by the parents for transportation associated with Khaled’s attendance at the Perkin’s School.
The School opposed all of the Parents’ requests for relief, arguing that it had arranged appropriate van transportation, with a monitor, to coincide with the Perkins School residential calendar, that there have been no requests from Perkins for additional services, training or equipment to address Khaled’s individual special education needs, and that the remainder of the parental requests set out in the Motion are more appropriate for Team discussion.
This matter is currently scheduled for hearing in February 2011. The issues for resolution at that hearing center on the adequacy and appropriateness of special education services delivered to Khaled during the 2008-2009 and 2009-2010 school years. That hearing will not address any issues connected with Khaled’s placement at the Perkins School for the 2010-2011 school year. The Perkins School placement was made as a result of settlement negotiations. To date, despite numerous attempts to schedule one, a Team has not convened to develop an IEP reflecting the Perkins placement. The Parents’ argument in support of their instant request for interim relief is that the Perkins residential program, as it is currently configured, is not entirely appropriate for Khaled. They assert that Perkins lacked sufficient staff training in Khaled’s unique communication needs, skills and equipment to provide a safe and responsive learning environment for him. They also assert that Khaled is too young for an abrupt removal from home and required a more gradual individualized transition to full-time school residence than Northampton was willing to provide for.
The School contends that the Parents thoroughly investigated available educational options for Khaled, determined that Perkins was appropriate and accepted a residential placement there for him. Northampton points out that Perkins did not request any additional or alternative staff, staff training, equipment, service scheduling, or other modifications to its educational or residential program to meet Khaled’s unique needs. Northampton’s offer of monitored door to door transportation consistent with the Perkins School’s standard residential student schedule is appropriate for Khaled as a residentially placed student.
ISSUE
Whether the Parents are entitled to reimbursement of expenses incurred in providing daily round trip transportation and supplemental services and equipment to the Perkins School?
SUMMARY OF FACTS
The correspondence between the Parents and Northampton, submitted as Parents Exhibits 1 through 7 in support of the Motion for Interim Relief, illustrates the misunderstandings and miscommunications that characterize the parties’ relations. Fortunately the testimony of Robert Hair, the Educational Director of the Perkins Lower School, illuminates the setting, services, and program expectations for Khaled as an accepted residential student. Mr. Hair testified that:
1. Khaled was accepted as a residential student in April 2010 and began attending the Perkins School on September 8, 2010.
2. The Perkins Lower School has 62 students, 14 of whom are residential students. In October 2010 none of the lower school residential students stayed at Perkins during weekends. There are 20 students ages 11-14 in the Perkins Middle School. Six or seven of the Middle School students stay during the weekends. There is a full educational and recreational program during the weekends which focuses on independent living skills and field trips. It is linked to the curriculum taught during the week.
3. Perkins Lower School staff is familiar with augmentative communication equipment. Three speech-language pathologists currently work with Khaled: one is an AAC specialist; one concentrates on feeding issues; and one has expertise in speech production. They work as a team to ensure that Khaled has practical, accessible, meaningful communication strategies across all settings. Khaled is not the only student in the Lower School who uses a speech generating device.
4. Perkins School staff understood that the Parents had accepted a residential placement. They expected Khaled to begin on September 8, 2010 as a residential student. The Admissions Director, Chris Underwood, and Northampton agreed that Northampton would provide necessary transportation for holidays and scheduled Perkins School breaks. (See also P-6 and P-7).
5. Perkins had all staff, services, physical resources and equipment necessary to support Khaled’s residential placement as of September 8, 2010. Perkins never told Northampton that Khaled could not or should not stay overnight. Perkins never recommended that Khaled attend, or transition, as a day student.
6. Perkins has billed Northampton the residential rate for Khaled’s placement. Perkins also has a day rate.
7. Khaled has been attending Perkins as a day student since September 8, 2010. Khaled’s parents have been providing daily round trip transportation. The decision to have Khaled attend Perkins during the school day only was solely the Parents’.
8. It is not unusual for a young student to transition over the course of 2-4 weeks to full residential status. By October 15, 2010 Khaled had spent 2 overnights at Perkins. He tolerated the overnight stays well.
9. A team meeting was scheduled to occur at Perkins on November 11, 2010 to develop a working IEP for Khaled for the 2010-2011 school year.
In addition I take administrative notice of the distance between Northampton, Massachusetts and the Perkins School in Waltham, Massachusetts: approximately 97 miles, and the estimated travel time between these two points: 2 hours (google maps.)
I note also that although the document does not appear in this record, counsel for both parties agreed that the Parents had signed the consent to placement page of the 2010-2011 IEP acknowledging Khaled’s status as a residential student and therefore authorizing disbursement of public funds in support of that placement. There is no indication that the Parents have withdrawn their consent to the Perkins School residential placement.
None of the above recited facts is in dispute.
Legal Framework
The school district’s obligations concerning transportation of eligible students to their special educational programs are set out in 603 CMR 28.05 (5), 603 CMR 28.06(8) and 603CMR 28.07(6). School districts are required to provide transportation, with the equipment and staffing necessary to maintain the student’s safety, that will ensure access to the student’s agreed upon special education services.
If Parents demonstrate that the transportation arrangements made by their public school district do not conform to an agreed upon IEP, do not ensure that the student actually receives a free, appropriate public education, or otherwise violate a particular procedural or safety provision, the Parents may be entitled to reimbursement of expenses they incur in providing alternate transportation. School Committee of Burlington v. Department of Education , 471 U.S. 559 (1985). Student v. Blackstone-Millville Regional School District et al cited at Attleboro Public Schools , 15 MSER 310 (2009).
Findings and Conclusions
After careful consideration of the evidence and arguments proferred by counsel for both parties, it is my determination that the Parents are not entitled to reimbursement for expenses they incurred in transporting Khaled to the Perkins School on a daily basis. The parties agreed that Khaled would attend the Perkins school as a residential student beginning in September of 2010. The Perkins school accepted, and according to Mr. Hair, was fully prepared for Khaled as a residential student. Northampton notified the Parents of the residential student transportation arrangements prior to Khaled’s enrollment at Perkins. (P-6, P-7). The Perkins School has never recommended that Khaled attend its program as a day student and did not accept him as a day student. There was never an agreement among the Parents, Northampton and Perkins that day programming at Perkins, with the associated commute, could provide Khaled with a free appropriate public education. There is no evidence that the transportation services arranged by Northampton were unavailable at any time prior to or during Khaled’s Perkins School enrollment. There is no evidence that the transportation service arranged by Northampton is inappropriate or unsafe or untimely. There is no evidence that Khaled would not have access to the agreed upon special education program at the Perkins School were he to be transported by Northampton.
Instead the evidence demonstrates that the Parents made a unilateral decision to place Khaled at Perkins as a day student and a unilateral decision to undertake the daily round trip transportation that a day placement requires. The Parents’ unilateral decisions, while understandable, are not entitled to public funding absent a showing that only by their self help actions would the student receive the free appropriate public education to which he is entitled. No such showing was made here.
Therefore I find that the Parents’ request for reimbursement of the transportation expenses they have incurred, or will incur, since September 8, 2010 in connection with Khaled’s placement at the Perkins should be denied as unnecessary to the Student’s receipt of the appropriate publicly-funded residential special education program to which the Parents had previously agreed (See Request 2, 3, 4, 5.). Furthermore, there is at this time no evidence that Perkins requested, or Northampton authorized, or that FAPE requires, any special education services in addition to those to be provided to Khaled as a residential student at the Perkins School. Therefore the Parents’ requests for reimbursement for expenses associated with arrangements they made for supplemental services for Khaled, and for an interim order to add specific consultative services to Khaled’s residential program are DENIED. I find that some of the other requests set out by the Parents in their Motion for Interim Relief are more properly discussed by a Team before being presented to the Bureau for Decision. (See Request 6, 7, 8 and perhaps 2). There is no evidence of neglect or malfeasance on the part of the Northampton Public Schools that could justify the type of relief requested by the Parents in item 1.
Khaled’s current placement is as a residential student at the Perkins School. Northampton is responsible for providing appropriate door-to-door transportation between Khaled’s home and the Perkins School, with a monitor, consistent with the Parkins School’s residential student calendar.
ORDER
The Parents’ Motion for an Interim Order is DENIED.
By the Hearing Officer
________________________
Dated: November 30, 2010
1
“Khaled” is a pseudonym chosen by the Hearing Officer to protect the privacy of the Student in documents available to the Public.
2
Administrative Record