COMMONWEALTH OF MASSACHUSETTS
DIVISION OF ADMINISTRATIVE LAW APPEALS
BUREAU OF SPECIAL EDUCATION APPEALS
IN RE: PILAR1 & AGAWAM PUBLIC SCHOOLS
BSEA #12-1714
DECISION
This Decision is issued pursuant to 20 U.S.C.§1400 et seq (“IDEA”); 29 U.S.C. §794 (Section 504 of the Rehabilitation Act of 1973); M.G.L. c 71B; M.G.L. c.30A (the Massachusetts Administrative Procedures Act) and the regulations promulgated under those statutes. This matter originally came before the Bureau of Special Education Appeals (BSEA) on the Parents’ Request for a “Stay Put” Order. An Order affirming the school district’s obligation to reimburse the Parents for expenses associated with their unilateral “self-help” placement of Pilar at an out-of-district residential therapeutic school was issued on October 6, 2011. Since then the Parties have been unable to agree on the parameters of the district’s responsibility for transportation-related expenses incurred by the Parents. On January 17, 2012 the Parties agreed to submit this dispute for Decision without a Hearing pursuant to BSEA Rule XII and 801 CMR 1.01(10)(c). On January 26, 2012 the Parents submitted exhibits marked P-1 through P-6 (A-F) and the School submitted exhibits marked S-1-3 (A-C). No objections were lodged to the admission of any exhibit. In addition to these above-noted exhibits the Hearing Officer takes administrative notice of the contents of the file in BSEA #12-1714 and, in particular, of the facts recited in the “Stay Put” Order issued on October 6, 2011. BSEA Rule X (B) (10).
The Parties agreed on the following statement of the issue which was subsequently incorporated into a scheduling Order:
Whether, when this Student is enrolled in an out-of-state residential therapeutic educational program, the public school is responsible for providing, and/or for reimbursing expenses incurred by the Parents in providing round-trip transportation during school breaks designated on the program’s official school calendar as “optional”?2
The Parties submitted written arguments in support of their respective positions by February 6, 2012 and the record closed on that date.
SUMMARY OF THE EVIDENCE
1) Pilar is a 16 year old Agawam resident who is entitled to receive a free, appropriate public education pursuant to 20 U.S.C.§1400 and M.G.L. c71B. She has multiple mental health diagnoses and a history of related hospitalizations and residential therapeutic educational placements. (P-2 (A).)
2) For the 2010-2011 academic year Pilar attended the Bromley Brook School in Vermont. Bromley Brook was a year round therapeutic residential school serving students with academic, social, behavioral, and psychological needs similar to Pilar’s.
The last accepted IEP for Pilar, which runs from March 2011-March 2012, included a section related to transportation to Bromley Brook. The IEP stated: “[Pilar] is placed out of district. She requires transportation.” The IEP noted that the district would provide transportation associated with the Bromley Brook placement “on a regular transportation vehicle with the following modifications and/or specialized equipment and precautions:” No modifications to the mode, method, timing or staffing of “regular” transportation were listed on the IEP. The transportation section does not refer to the school calendars of either Bromley Brook or Agawam. (P-2)
3) Bromley Brook closed on July 2, 2011. Agawam did not propose an alternative placement that could implement Pilar’s accepted IEP. The Parents enrolled Pilar at the Talisman Academy in North Carolina, a year-round private, therapeutic residential school with a student population, social/behavioral supports and academic services similar to those at Bromley Brook. Pilar began attending the Talisman Academy on July 7, 2011. (Administrative Record)
4) On October 6, 2011 the BSEA issued a “Stay Put” Order finding: that Agawam had failed to identify an available school program that could implement Pilar’s accepted 2011-2012 IEP upon the closure of the Bromley Brook School; that Talisman Academy was capable of providing the special education services and setting that were outlined in the accepted 2011-2012 IEP and was comparable to Bromley Brook; and that Talisman Academy was therefore Pilar’s “Stay Put” placement pending resolution of any other issues through a subsequent IEP development process or administrative dispute resolution. The BSEA further ordered:
The Parents are thus entitled to reimbursement of all expenses associated with Pilar’s attendance at Talisman Academy on a “stay put” basis beginning in July, 2011.
(Administrative Record)
5) Pilar is currently attending the Talisman Academy. Agawam has not held a Team meeting or offered any alternative placement to the Parents since the “Stay Put” Order was issued in October 2011. Agawam is not providing any direct special education or related service, including transportation, to Pilar.
6) Agawam has reimbursed the Parents for the tuition payments they advanced to Talisman Academy on Pilar’s behalf. Agawam has not reimbursed the Parents for out-of-pocket costs the Parents incurred in transporting Pilar between her home in Agawam and the Talisman Academy in North Carolina.
7) According to his Affidavit Mr. P. (Father) rented a car to drive Pilar to Talisman Academy in July, 2011 for her initial intake. Round trip mileage was 1,715. In addition to the car-related costs the family broke the trip by staying in a hotel for one night in each direction and one overnight near the school. The total for this portion of the Parents’ reimbursement claim is $572.32. (P-3 (c.) The Parent originally submitted the reimbursement claim on November 14, 2011. When the Parent re-submitted the claim to Agawam on December 16, 2011 the Director for Finance for the Agawam Public Schools, Patricia Cavanaugh, responded:
[W]hy are you submitting expenses for a hotel stay?
I do not think we are liable for hotel expenditures for a residential school, please provide some documentation as to why you believe this is a reimbursable expense.
(S-3)
8) The Parent also submitted reimbursement claims to Agawam for 4 round-trips by air for Pilar alone between Hartford, Ct. the commercial airport closest to Agawam, and Asheville, N.C., the commercial airport closest to Hendersonville, N.C. where Talisman Academy is located. The Parents did not request reimbursement for ground transportation costs between the airports and the final destinations. The claims submitted were for Pilar’s visits home from Talisman Academy on the weekends of August 1, 2011 and October 20, 2011, the Thanksgiving Holiday beginning November 22, 2011, and a two week winter break beginning December 22, 2011. (P-3) When the Parent submitted the claim for airfare expenses associated with Pilar’s 4 trips home from Talisman Academy between July and December 2011, a total of $2,037.16, Ms. Cavanaugh wrote:
I have received your documentation but I will need a copy of the school calendar as we are only required to pay for travel to school and [sic] the beginning of the year and from school at the end of the year unless the school is on an official break. Therefore by providing me with the school calendar, I will be able to determine eligible reimbursable expenses.
(S-3)
9) Mr. P. provided Agawam with a copy of the Talisman Academy calendar on December 8, 2011. The calendar states:
*Talisman Academy is a year round boarding school designed to meet the individual academic needs of our students while placing an emphasis on social skills enhancement, improving family dynamics and strengthening communication skills. Due to our core areas of growth for our students, each break and parent weekend is designed to provide our families and students, the opportunity to transfer their learned skill sets by practicing specific goals within the home environment. Based on date of enrollment, needs of family, and/or logistics of travel, parents will also have the option to have students remain on campus during the designated breaks to continue developing their social/life skills through our highly structured experiential curriculum.
The dates October 21, April 5, May 26, and July 21are starred indicating that the language quoted above is applicable to those dates.
(P-5 (E).)
10) In January 2012, Barry Beavers, Clinical Director of Talisman Academy, wrote:
To Whom It May Concern:
Talisman Academy offers a variety of breaks and flexibility for students throughout the year. It is the goal of Talisman Academy to adequately prepare the child and family for these important transitions as our goal is that 100% of our students return to their homes for all scheduled breaks. As an excerpt from our handbook states:
“The long breaks are great opportunities for students to practice what they have been learning and for parents to work on holding higher or more realistic expectations for their children.”
Talisman Academy understands that it is best practice for working with our
population to provide a variety of opportunities for our students to practice newly acquired skills and behaviors in their home environment. This is not limited to scheduled breaks by Talisman Academy. We want families to feel encouraged to include their boarding school student in important and significant family events such as birthdays, family reunions, weddings, and other family celebrations of note. We work with families to ensure that the student is well prepared for these breaks and opportunities as well as making recommendations for length of stay, number and type of family events for attendance within a time frame, or similar concerns.
With regards to [Pilar] this team finds her appropriate for all available breaks and opportunities for home visits. We recommend that she engage every opportunity to practice her newly acquired skills and behaviors in her home environment. Prior to each visit with her family, goals are set with [Pilar] and her family, and the Talisman Academy team. Upon her return to Talisman Academy, we again collaborate to evaluate her success and struggles during the visit. These breaks are crucial components for [Pilar’s] continued progress within our program.
(P-5 (E).)
11) In his Affidavit Mr. P. stated:
My wife and I speak regularly with [Pilar’s] service providers at Talisman Academy about her educational program and needs.
My wife and I understand that family therapy and parental participation are key components of [Pilar’s] educational program at Talisman Academy, and we always make ourselves available to participate in any way we can.
For each break that [Pilar] has taken since attending Talisman Academy, my wife and I have worked with her team at Talisman Academy to discuss [Pilar’s] needs and goals during the break. We encourage [Pilar] to work on her skills when she is at home, and view these breaks as critical components of [Pilar’s] educational program.
[P-3 (c)]
12) There is no contrary, countervailing, supplementary or explanatory clinical or educational information in the record.
13) Mr. P. also stated in his Affidavit that Agawam had not, prior to the submission of the fall 2011 claim for transportation reimbursement, limited the home-school transportation services provided to Pilar while she was attending a residential school. Mr. P. wrote:
Historically, Agawam has provided [Pilar’s] transportation to and from her various residential programs based upon the school’s calendar and did not limit her transportation to the beginning and end of the school year, or breaks where the campus actually closed. For example, when [Pilar] attended New Leaf Academy in Hendersonville, North Carolina during grades 6-8 pursuant to IEPs provided by Agawam, Agawam not only funded all of [Pilar’s] trips home for every school break noted on the New Leaf academic calendar, but also paid for my wife and I to attend at least five parent weekends so that we could attend family therapy and visit on campus.
(P-3 (c).)
14) There is no indication in the record that the transportation arrangement in place while Pilar was a publicly funded student at the New Leaf School changed while Pilar was a publicly funded student at the Bromley Brook School.
15) There is no indication in this record that Agawam has developed or offered an alternative transportation plan for Pilar and her Parents while Pilar is attending Talisman Academy.
FINDINGS AND CONCLUSIONS
The parties agree that Pilar is a Student with special learning needs as defined by 20 U.S.C. §1400 et seq and M.G.L. c.71B and is thus entitled to receive a free appropriate public education. The parties also agree that Pilar requires specialized educational programming in a year-round residential therapeutic school. The BSEA has previously found that Talisman Academy is an appropriate placement for Pilar, and that Agawam is responsible for ensuring that Pilar’s last accepted IEP is implemented at Talisman Academy. The BSEA ordered that Agawam support Pilar’s “stay put” placement at Talisman Academy at no cost to the Parents. The Parents now come to the BSEA contending that Agawam has failed to comply with the BSEA’s October 6th “Stay-Put” Order requiring Agawam to reimburse the Parents for all out-of-pocket costs incurred by the Parents associated with Pilar’s placement at Talisman Academy beginning in July 2011. For the reasons set out below I find that Agawam’s refusal to reimburse all of the Parents’ transportation-related expenses constitutes an impermissible attempt to shift part of the placement related costs that must be borne by the school district to the Parents.
First, under “stay-put” principles, Agawam is obligated to provide the type, level, frequency and location of special education and related services to which the parties had last agreed. 20 U.S.C.§1415 (j(; 34 CFR §300.518; CMR 28.08(7); Verhoeven v. Brunswick School Committee , 207 F.3d 71 (1st Cir 1999); Doe v. Brookline School Committee , 722 F.2nd 910 (1st Cir. 1983). The uncontroverted evidence in this matter, in particular the last accepted IEP and the Parent’s affidavit, shows that transportation services had been provided to Pilar’s family without any limitations based on school calendars, frequency, purpose or identity. ¶2 and 12 supra ) Therefore Agawam may not impose them now. To do so would alter the status quo and run afoul of Agawam’s obligations under federal and state special education law as well as the BSEA Order entered in this matter on October 6, 2011.
Second, even were Agawam not responsible for reimbursing the Parents the full cost of their out-of-pocket transportation related expenses under “Stay Put”, it would certainly be obligated to wholly reimburse the Parents for those expenses as appropriate “self-help” measures. The IDEA was enacted to ensure that all students with disabilities have available to them a free appropriate public education. 20 U.S.C.§1400 (d)(1)(A) (emphasis supplied). See also 20 U.S.C. §1400 (d)(4). If a school district fails in its obligation to provide that free appropriate public education to a student with a disability, the parents may enroll the student in a private school and seek “retroactive reimbursement”. In that circumstance the Parents step into the shoes of the school district and are entitled public funding of their reasonable out-of-pocket costs incident to that placement, including but not limited to, tuition, transportation and associated related services. 20 U.S.C. §1422 (a)(10)(c)(ii); Florence County School Dist. Four v. Carter , 510 U.S. 7 (1993); Sch. Comm of Burlington v. Dept. of Education , 471 U.S. 359 (1985); Diaz-Fonseca v. Puerto Rico , 453 F.3d 13 (1st Cir. 2006) The costs to the parents of providing related services, including transportation, which the school district should have provided but didn’t, are reimbursable so long as they are necessary for the student to benefit from her special education program. 34 CFR 300.139 (b); 603 CMR 28.05.
The school district may not complain that it could have provided the same service the Parents did more effectively or efficiently or less expensively. It did not. Nor may it impose on reimbursement claims limitations or conditions which are unrelated to the primary purpose of the parental expenditure: providing the special education the district did not. The focus for reimbursement purposes is making the Parents “whole”. Here the Parents took eminently reasonable steps to ensure that Pilar received the special education services to which she was entitled under her current IEP but which Agawam did not provide. The out-of-pocket transportation expenses they documented are clearly associated with provision of necessary and beneficial educational services to Pilar and are demonstrably reasonable under the circumstances. (P-3, 4) The Parents are entitled to full reimbursement of all transportation related costs incurred to date. In addition the Parents are entitled to public funding of similar expenses incurred in connection with Pilar’s continued placement at Talisman Academy either through direct reimbursement of their costs or the assumption of responsibility for providing appropriate transportation services by Agawam.
Third, while the unrebutted evidence demonstrates that Pilar requires transportation between her home in Agawam and the residential school she attends in North Carolina in order to access the free appropriate public education to which she is entitled, there is more. The clinical staff at the Talisman Academy have indicated that the special education program includes significant family partnership and participation in planned activities, such as on site therapy and weekend campus and home visits, which are designed to reinforce and extend the social/emotional/behavioral instruction Pilar receives at Talisman. Thus, according to Talisman Academy, regular visits home are an integral component of the special education at Talisman, a component from which Pilar benefits. (¶ 10) The Talisman Academy school calendar includes “breaks” during which students like Pilar, for whom family visits are an appropriate part of the special education
program, are scheduled to continue working on their IEP goals off-campus (¶ 9) The uncontroverted evidence in this record demonstrates that the “breaks” listed on the Talisman Academy calendar are an integral component of its therapeutic program. Transportation between home and school during these “breaks” is not therefore “optional” as Agawam argued. It is a necessity for proper program implementation. The fact that some Talisman students may remain on campus during designated breaks is immaterial to the clinical and educational goals developed for Pilar. There is no evidence to the contrary. Agawam is financially responsible for all components of Pilar’s Talisman Academy placement, including any and all student and family transportation required to deliver its specialized therapeutic educational services.
Finally, Agawam relies on the BSEA Decision In Re: Khaled and Northampton, 16 MSER 421 (2010) for the proposition that when a student attends a residential school, the sending public school district is responsible for providing transportation only during breaks identified by the residential school’s calendar. The facts here are readily distinguishable from those found in Khaled . There the Parents accepted an IEP providing for a full year residential placement for which the school district had proposed an associated transportation schedule. The residential school asserted that all necessary educational services were in place on campus. There was no evidence that the Student could access appropriate special education at home or in a less intensive setting than the full time residential placement that had been unconditionally accepted by the Parents. Therefore the Parents’ unilateral election to provide daily transportation to the Student did not support FAPE and was not entitled to public funding. In the instant matter, the Parents are providing substitute services for an IEP Agawam has not taken appropriate steps to propose or implement. The record shows that Pilar benefits from the significant home component of her therapeutic educational program. That component includes both student practice at home and family instruction on the Talisman Academy campus. Parents are seeking reimbursement for transportation and associated costs related only to delivery of these necessary components of the Talisman program, nothing more.
ORDER
Agawam is responsible for all transportation-related costs incurred by the Parents in connection with Pilar’s enrollment in and continued attendance at the Talisman Academy. Agawam shall reimburse the Parents for out-of-pocket expenses detailed in the Affidavit of Mr. P. dated January 26, 2012 (P-3; see also P-4, 5) within 30 days of this Decision. Agawam shall remain responsible for all Parent expenses associated with Pilar’s continued placement at Talisman Academy, including tuition and Student and/or Parent transportation for any service, program component, or “break” consistent with the recommendations of the clinical/educational staff at Talisman until such time as the Parties agree otherwise or an amending Order is issued by the BSEA.
By the Hearing Officer
_________________________
Dated: February 17, 2012
1
“Pilar” is a pseudonym chosen by the Hearing Officer to protect the privacy of the Student in documents available to the public.
2
The wording of the issue statement turns out to be misleading. The school calendar submitted as P-5(E) does not contain the term “optional”.