COMMONWEALTH OF MASSACHUSETTS
Bureau of Special Education Appeals
In Re: Lolani1 * BSEA#04-0359
Ruling on Motions
This matter comes before the Bureau on the Joint Motions of the Student and the Northampton Public Schools to Join the Clarke School for the Deaf in this special education proceeding and for an Order requiring the Clarke School for the Deaf to maintain the Student’s “stay put” placement there pursuant to 603 CMR 28.08 (7) and 20 U.S.C. § 1415 (j). The Clarke School for the Deaf opposes both motions. All participants submitted written briefs, with additional documents, affidavits and pertinent administrative rulings prior to the assigned hearing date of December 15, 2003. Due to inclement weather and school closings, oral arguments on the motions were made and recorded by teleconference on December 15, 2003.
Factual Background
There are significant areas of factual dispute between and among the interested entities. In addition, some facts which would be essential to resolving the fundamental placement or FAPE issues, do not appear in this record.2 Nevertheless the undisputed facts necessary to preliminarily address the parties’ motions are set out below:
1. Lolani is a ten year old student with special education needs, including a hearing impairment and a diagnosis of complex post-traumatic stress disorder. She is a resident of Northampton.
2. The Clarke School for the Deaf is a Massachusetts approved private special education facility.
3. Lolani has attended the Clarke School for the Deaf (hereinafter “Clarke”) as a publicly funded day student for three years. During the 2002-2003 school year, Clarke personnel became concerned about the appropriateness of Clarke’s educational program for Lolani. Clarke documented instances of behavioral discontrol, including physical aggression, non-compliance, and self-abuse, that resulted in both internal and external disciplinary actions.
4. Team meetings were held on May 13, and June 10, 2003. The IEP resulting from those meetings, if any, is not in the record before me.
5. On August 5, 2003, the Clarke school notified the Northampton Public Schools of its intent to terminate Lolani’s enrollment. Clarke indicated its willingness to maintain the Student’s placement until a termination Team meeting could be scheduled and Northampton could locate “an alternative setting”. (Opposition to Motions; exhibit H)
6. Several Team meetings scheduled during the late summer and fall of 2003 were postponed. A Team meeting to develop a termination plan convened on November 3, 2003. Clarke proposed a draft termination plan, but no termination document containing the guardian’s signature, nor any subsequent IEP appears in this record.
7. The Clarke School proposes to terminate Lolani’s enrollment on December 19, 2003, the final day of classes before the winter break. Classes resume on January 5, 2004.
Joinder
The Massachusetts regulations establishing and governing the Bureau of Special Education Appeals set out its broad jurisdictional mandate:
In order to provide for the resolution of differences of opinion among school districts, private schools , parents, and state agencies, the Bureau of Special Education Appeals, located within the Department, shall conduct mediations and hearings to resolve such disputes.
603 CMR 28.08 (3) (emphasis added)
Since the joinder ruling in South Hadley Public Schools , 6 MSER 67 (2000), and the subsequent conforming change in regulatory language (603 CMR 28.00 et seq.; effective 01/01), there has been no challenge to the Bureau’s position that it may assert jurisdiction over private schools that receive public funds to provide special education to Massachusetts students.
Special Education Appeals Hearing Rule 1F permits a potential party to be joined when complete relief cannot be granted among those who are already parties, or the person being joined has an interest relating to the subject matter of the case and is so situated that the case cannot be disposed of in their absence.
See also 801 CMR 1.01 (7). The determination of whether a proposed party should be joined is grounded in equity. Factors which must be considered are: the risk of prejudice to the present parties in the absence of the proposed party; the range of alternatives for fashioning relief; the potential for an inadequate judgment without the proposed party’s participation; and the availability of an alternate forum to resolve the issues. See Rule IF; M.R.C.P. Rule 19.
Here, the Student and Northampton Public Schools are seeking enforcement of the Student’s “stay put” rights against a reluctant private entity. They argue that were Clarke not joined as a party to this action the Bureau would be unable to order the very remedy they seek through the hearing process: continued placement at Clarke. The legislative and regulatory preference for maintenance of the status quo pending dispute resolution proceedings would be thwarted were the Bureau unable to enforce 603 CMR 28.06 (2)(f)(1) by requiring Clarke, as a party, to maintain the Student in her current placement. The risk of interruption and/or termination of the only currently available, identified placement for the Student is significant as Clarke has indicated its intent to terminate the Student’s enrollment on December 19, 2003. As there has been no showing of an existing, comparable special education program, the only appropriate interim relief the Bureau could order would be continued placement at Clarke. Were Clarke relieved of its responsibility to maintain the Student’s status quo placement, it is likely the Student would be without a free, appropriate public education for an indefinite period of time. Finally, the Student and Northampton maintain, there is no alternate appropriate forum to resolve the issues between the Clarke School on the one hand and the Student and Northampton on the other. Courts reviewing disputes about a student’s special education placement require parties to exhaust any available administrative appeals. There is no other administrative body in Massachusetts designated to review initial claims under the IDEA and M.G.L. c. 71B. Therefore, the Student and Northampton contend, all equitable factors weigh in favor of joining Clarke School in this appeal.
Clarke argues, on the other hand, that the IDEA and M.G.L. c71B run only to public agencies involved in the education of students with disabilities. Therefore, any rights or remedies available to Lolani through the hearing process may only be enforced against Northampton Public Schools. Since an order can enter only against Northampton, Clarke argues, there is no practical reason to join it as a party to this appeal.
While there are legal and logistical difficulties in applying the particulars of the IDEA and M.G.L. c.71B to private special education facilities, these difficulties may not serve to eliminate remedies available to students engaging in substantive and procedural challenges to their publicly funded private placements. Acknowledging that the duty to ensure that a disabled student actually receives a free, appropriate public education remains always and primarily with the public agency, it is nonetheless clear that private schools are obligated to observe special education regulations running to the benefit of their publicly funded students. Without a forum to examine the claims and enforce the rights of these students to the highly specialized programs private facilities offer, there is no mechanism to assure compliance with special education mandates. Particularly in matters such as this, where the intended evidence has the potential to implicate the anti-discrimination provisions of 29 U.S.C. § 794 (Section 504), a statute which requires the development of an administrative record by this agency, the assertion of jurisdiction by the Bureau is proper.
After considering the thoughtful arguments of all participants and the limited undisputed evidence, I find that the risk of interruption or elimination of an appropriate special education program for this Student without the participation of the Clarke School is significant. The absence of the Clarke School from the proceeding would seriously prejudice the Student’s ability to continue or to acquire a free, appropriate public education. Clarke’s presence and amenability to the Bureau’s orders is likely to be necessary to afford complete relief to the Student. Finally, there is no alternate forum to resolve the Student’s special education claims. Therefore, I find that Joinder of the Clarke School as a party to this special education appeal is warranted under the facts presented and pursuant to BSEA Rule IF.
“ Stay Put”
1. The parties’ thorough and well-reasoned arguments concerning the Student’s “stay put” rights present a complex and compelling legal issue, which, as far as I have been able to determine, has not been settled in Massachusetts. Under 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. It does not distinguish between types of placement: public or private; day or residential; home-based or center-based.
Clarke, however, asserts, that these regulatory obligations run only to public agencies and cannot be enforced against a private facility. It argues that its obligation to a student whom it finds no longer appropriate for its program is to follow the appropriate termination procedures set out at 603 CMR 18.05 (7), along with its own published policies and its public placement contract with the placing public school district. To hold otherwise would seriously hamper the capacity of highly specialized special education providers to create and maintain an appropriate learning environment for a vulnerable population of students. It would also delay procedurally compliant terminations and raise the likelihood of students “staying put” unnecessarily in inappropriate placements. Clarke also argues that the Massachusetts regulations governing private schools which provide special education to publicly funded students, found at 603 CMR 18.00, comprise the entirety of the procedural protections to which those students are entitled. In particular, Clarke maintains that since the regulatory section addressing terminations, 603 CMR 18.05 (7), contains no mechanism for disinterested review of a private school’s termination decision, the Bureau cannot import one in the form of a student due process challenge. To do so by invoking the principle of “stay put” would impose a procedural delay not contemplated in the private school regulations.
The Student, on the other hand, points to 603 CMR 28.06 (2) (f) (1) which explicitly extends the “full protections of state and federal special education law and regulation” to students placed in “out-of-district” programs.3 Here, again, there is no mention of a private school exemption from the “stay put” language in the federal and state regulations. Taken together the clear regulatory language of the “stay put” provisions and the private school student protections demonstrate the drafters’ intention that all students, no matter where they receive special education services, are entitled to maintenance of their status quo while their IDEA disputes are being heard.
After careful consideration of the parties’ positions I find that the weight of legislative and regulatory authority supports the Bureau’s enforcement of a student’s “stay put” rights against a private special education school.4 The principle that a student may, even must, remain in the special education program agreed upon by the parents and the responsible public school system while a dispute concerning any aspect of that student’s IDEA rights is resolved is a fundamental protection in both federal and state law. The only permitted exception to maintenance of the “status quo” placement is a temporary removal as a result of a serious and dangerous disciplinary incident. See 20 U.S.C 1415 (j)(k)5 Even then, impartial administrative review and approval of the school district’s emergency action is required. In the instant matter, the parties agree that the Student’s actions do not merit treatment under this Section of the regulations. There is no legislative language exempting publicly funded students placed in private special education facilities from application of the “stay put” doctrine. I also must consider the stated goal of the IDEA: to provide a free, appropriate public education to every student with a disability. The “free” part is key. It means that there will be public funding of the disabled student’s education. With public funding comes a measure of public oversight, even public control. I am persuaded that this oversight would properly include, at a minimum, a review of a private school’s unilateral termination of a publicly funded special education placement. To fail to extend the same measure of “stay put” protection to an eligible student who, because of the nature or extent of her disability cannot be educated within the public school system, as is without question enjoyed by students attending public school programs, would be to fail to deliver on the IDEA’s promise of equal education for all students with disabilities.
Similarly, 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 28.00.6 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.
The determination that disabled students attending private schools at public expense have “stay put” rights to their programs there raises significant concerns including the extent of state oversight of private entities, the capacity of programs that specialize in meeting the educational needs of discrete populations who are not able to be educated in the mainstream to creatively design programs targeted to those needs, and ultimately the practical wisdom of placing restrictions on the capacity of private schools to terminate publicly funded students. These concerns must be addressed in another forum. Here, guided by the wholly inclusive language of the applicable regulations, and strong public policy favoring “stay put” in all but the most dangerous circumstances7 , I can find no justification for excluding publicly funded private school students from the procedural protections accorded to all other disabled students under the IDEA.
2. In the instant matter the parties agree that Lolani was a publicly funded student attending the Clarke School at the time her hearing request was filed on November 26, 2003. She is therefore entitled to remain at the Clarke School at public expense pending resolution of this dispute. The Clarke School is in no different position than any publicly funded provider of special education. It may, with the consent and support of the Student, her family and the placing agency, provide modifications and accommodations designed to ensure delivery of a free, appropriate public education to Lolani pending the outcome of the hearing. It may press for speedy resolution of the issues at this level. Or it may seek a preliminary injunction from a state or federal court ordering a change in the Student’s placement. 603 CMR 26.08 (7) (d).
3. The motion hearing revealed substantial factual disagreements among the parties which require swift attention. “Stay Put” is necessarily an emergent and temporary situation. Where, as here, there is evidence to suggest that the Student is not actually receiving a free, appropriate public education in her “Stay Put” placement, the parties must be prepared to address the substantive programmatic issues quickly. To that end the following Orders are entered:
ORDERS
1. The Motion of the Student and the Northampton Public Schools to Join the Clarke School for the Deaf as a Party is GRANTED .
2. The Motion of the Student and the Northampton Public Schools for a “Stay Put” Order continuing the student’s current placement at the Clarke School for the Deaf is GRANTED .
3. Northampton Public Schools shall, no later than December 23, 2003, send referral packets to all public and private programs approved by Massachusetts to provide special education services to students who have both communication and language needs due to hearing impairment and emotional/behavioral needs due to post-traumatic stress disorder.
4. The Clarke School shall identify any additional modifications or accommodations to the program it currently provides to Lolani that is reasonably likely to ensure the delivery of an appropriate special education to her. Should any requested accommodation or modification require additional personnel, material or service, the Northampton Public Schools will be responsible for arranging and funding the requested item (s).
5. The guardian shall supply any and all evaluations, assessments, observations or other documents she intends to introduce at a hearing to the Clarke School and the Northampton Public Schools no later than December 23, 2003.
6. Counsel for the parties shall contact the scheduling coordinator for the Bureau no later than December 23, 2003, to arrange for two days of hearing during the first two weeks of January, 2004
____________________________
Lindsay Byrne, Hearing Officer
1
Lolani is a pseudonym selected by the Hearing Officer to protect the privacy of the Student in publicly available documents.
2
For example, copies of the Student’s current IEP, documentation of “comparable” programs and current evaluations of the Student were not included in the submissions.
3
1. “Students in out-of-district placements shall be entitled to the full protections of state and federal special education law and regulation. Out-of-district options include, but are not limited to special education schools approved under 603 CMR 28.09.” See also 603 CMR 28.09.
4
This is another, though later arriving, reason for joining a private school as a party to a special education appeal.
5
See: Honig v. Doe , 484 U.S. 305 (1988).
6
603 CMR 18.01; See also: 603 CMR 28.06 (2) (f) (1) and 603 CMR 28.09 (1)
7
20 U.S.C. 1415 (k); Honig 484 US 305 (1988)