Quinlan and The Agawam Public Schools – BSEA #04-0557



<br /> Quinlan and The Agawam Public Schools – BSEA #04-0557<br />

COMMONWEALTH OF MASSACHUSETTS

Bureau of Special Education Appeals

In Re: Quinlan1 and The Agawam Public Schools BSEA #04-0557

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 these statutes. At the Student’s request a prehearing conference was held on November 19, 2003, at which the parties agreed to submit the matter on documents pursuant to 801 CMR 1.01 (10)(b) and BSEA Rule 11. Both parties submitted arguments and documents as required by the Hearing Officer. The record closed April 6, 2004.

Issue

Does the provision of a free, appropriate public education to a student placed in a residential special education program include associated non-tuition expenses incurred by the parent for clothing, laundry, phone calls, a laptop computer and parental transportation?

Background

The factual and procedural background to this dispute may be briefly summarized:

1. Quinlan is a sixteen year old special education student. He has above average general intellectual functioning with significantly higher scores in cognitive reasoning, executive functioning, visual-spatial abilities, verbal skills and processing speed. He displays weaknesses in print related academic tasks and in math. He has a good self-concept and self-confidence and has no identified emotional or behavioral issues. The team determined that Quinlan could not be appropriately educated within the Agawam Public Schools.

(P-16, P-11)

2. During the 2002-2003 school year Quinlan attended the Kildonan school, a private residential school providing instruction for students with learning disabilities. The Team reconvened in May 2003 and determined that Quinlan’s placement at the Kildonan School should continue for the 2003-2004 school year. (P-11) The parent partially rejected the proposed IEP, but assented to Quinlan’s continued placement at the Kildonan School. (P-9)

3. Quinlan began the 2003-2004 school year at the Kildonan School but, for reasons not disclosed in this record, transferred to the Gow School in October 2003. (P-13) The Gow School is an unapproved private residential school in New York providing special education services to students with learning disabilities. (S-A) There is no dispute that Gow can and does provide appropriate special education services to Quinlan in the least restrictive setting possible.

4. A dispute arose between the Parent and the Agawam Public Schools concerning which, if any, expenses incurred by the Parent or Student in connection with the Student’s residential placement should be reimbursed by the public school. Initially it was the Parent’s position that all Student’s expenditures at the Kildonan/Gow Schools, including snacks, movie tickets, recreational reading materials, school supplies and themed t-shirts, should be the responsibility of the public school, as they would not be incurred were the Student not residentially placed as a result of his disability. Similarly the Parent requested reimbursement for purchasing the Student clothing that conformed to the School’s dress code, for phone calls to the Student, and for transportation to visit the Student when he was ill or had a sporting event. The parties could not agree on which parental expenditures would be reimbursable as part of the provision of a free, appropriate public education to the Student. There was no issue about the public school’s payment of tuition and related charges billed directly by the private school. The Parent requested a hearing on October 31, 2003, to resolve issues of financial responsibility.

5. At the time of the pre-hearing conference the Parent requested reimbursement for:

1. up to $25 per month to cover phone calls between home and school;

2. up to $700 per school year to cover costs of laundry, dry cleaning, and dress shirt service;

3. $1,141.90 reimbursement for clothing conforming to the private school dress code;

4. actual mileage (or airfare plus rental car) plus costs for lodging and food for Parent visits to private school to visit Student and attend parent-teacher conferences, sporting events, music recitals, etc.

5. laptop computer;

6. school photos/yearbook;

7. lift ticket and rental equipment for ski trip;

8. PSAT/SAT fees;

9. specialized sporting equipment for interscholastic competition;

10. haircuts;

11. toiletries/personal grooming articles;

12. music lessons

13. graphing calculator

The School requested guidance from the Bureau on which, if any, of the afore mentioned items merited public funding as a component of a free, appropriate public education for Quinlan. At the time of the parties’ due process submissions the Parent requests for reimbursement had been limited to: clothing, laundry, telephone, parental transportation and the laptop computer.

Legal Framework

As much as the multiple receipts, crossed communications, and socio-economic arguments may muddy the presentation, the legal issues before the Bureau is quite plain. In simple language it is whether any of the requested items or services are necessary for the achievement of the goals and objectives in Quinlan’s IEP? In the negative it may be framed as whether the absence of any of the requested items or services presents a barrier to the provision or receipt of a free, appropriate public education to Quinlan? A public school district is “responsible for provision of specific service(s) to students with disabilities, at no cost to parents , if such service(s) falls within the parameters of ‘special education’ and/or ‘related services’ 20 U.S.C. § 1401(18).” In re: Frank A. and the Somerville Public Schools, 2 MSER 10 (1996). Therefore the Bureau must determine whether clothing, laundry, telephone calls, parent transportation, and student laptop computer, are “special education” or “related services”. An inquiry as to whether a particular item or service falls within these parameters depends on the facts of a given case, as well as a “careful review of relevant state and federal statutes and corresponding regulations.” In re : Frank A . at 11. As Reece Erlichman, the Hearing Officer in that case, noted parenthetically “[I]n the absence of specific judicial guidance on point , the starting point for interpretation/analysis must be the plain meaning of the statute and related regulations” (citing U.S. v. Weber Aircraft Corp., 465 U.S. 792 (1984)).

A. Special Education

The operational definition of special education in the IDEA is set out in its implementing regulations:

The term special education means specially designed instruction, at no cost to the parents, to meet the unique needs of a child with a disability.

1. At no cost means that all specially-designed instruction is provided without charge, but does not preclude incidental fees that are normally charged to nondisabled students or their parents as a part of the regular education program.

3. Specially-designed instruction means adapting, as appropriate to the needs of an eligible child under this part, the content, methodology, or delivery of instruction-

I. To address the unique needs of the child that result from the child’s disability; and

II. To ensure access of the child to the general curriculum, so that he or she can meet the educational standards within the jurisdiction of the public agency that apply to all children.

34 CFR 300.26 (20 U.S.C. 1401 (25).)

Massachusetts regulations, interpreting M.G.L. c. 71B in conformity with the IDEA, provide this definition of special education:
special education shall mean specially designed instruction to meet the unique needs of eligible students or related services necessary to access the general curriculum, and shall include the programs and services set forth in state and federal law.

603 CMR § 28.02. (Emphasis added).

Massachusetts regulations provide further guidance on the scope of “special education” in other sections. For example: an eligible student’s IEP “shall include specially designed instruction to meet the needs of the individual student and related services that are necessary to allow the student to benefit from the specially designed instruction, or may consist solely of related services that are necessary to allow the student to access the general curriculum, consistent with federal and state law.” 603 CMR § 28.05(4)(b). (Emphasis added). Further, the IEP “shall include specially designed instruction or related services…designed to enable the student to progress effectively in the content areas of the general curriculum.” 603 CMR § 28.05(4)(b).

Taken together, the plain meaning of “special education” as the term is used in both the federal and state regulations is some type of “instruction” that is crafted especially for one student. It is the individually designed and delivered “instruction” that must be provided at “no cost” to the parent of an eligible student. Turning to the dispute here it is clear that the items for which the Parent seeks public funding: clothing, laundry, telephone service, transportation and a laptop computer, cannot be characterized as “instruction” and therefore are not subsumed in the regulatory definitions of “special education” that must be provided to this Student with a disability at “no cost” to his Parent.

B. Related Services

The definition of “related services” set out in the federal regulations mirrors the statutory definition set out in the IDEA.

§300.24 Related services.

1. General. As used in this part, the term related services means transportation and such developmental, corrective, and other supportive services as are required to assist a child with a disability to benefit from special education, and includes speech-language pathology and audiology services, psychological services, physical and occupational therapy, recreation, including therapeutic recreation, early identification and assessment of disabilities in children, counseling services, including rehabilitation counseling, orientation and mobility services, and medical services for diagnostic or evaluation purposes. The term also includes school health services, social work services in schools, and parent counseling and training.

34 CFR 300.24; 20 U.S.C. § 1401 (22).

Massachusetts regulations provide that the term “related services” is to have the same meaning as that set forth in 34 CFR § 300.24. 603 CMR 28.02 (19). Therefore the same analysis is used when considering both the federal and state statutory schemes.2 Some “developmental,” “corrective” and “supportive” services meant to be included in the “related services” umbrella are set out specifically in the regulation, e.g. audiology, occupational therapy, orientation and mobility services, parent counseling and training, recreation. The full scope of equipment and services covered by the term “related services” is evolving through judicial evaluation of statutory intent, technological advances in care of individuals with disabilities, and common sense planning by school districts and parents.

The leading case addressing the issue of public school responsibility for the provision of “supportive services” under the federal special education statute remains Irving Independent School District v. Tatro, 468 U.S. 891, 104 S. Ct. 3371 (1984)3 There, in deciding that the public school was responsible for providing school nursing services including clean, intermittent catherization to a student with spina bifida, the Court noted that services qualify as “supportive services” if without them the student cannot attend school and thereby benefit from special education. See also Cedar Rapids Community School District v. Garret F. , 526 U.S. 66, 119 S. Ct. 992 (1999)

Each item for which reimbursement is requested by the Parent as a component of the public school’s obligation to provide a free appropriate public education must be evaluated using the plain statutory and regulatory language concerning related services, augmented by the Supreme Court’s directive in Tatro to consider issues of actual access to the special education program to determine whether it may be properly characterized as a “related service” before public funds may be authorized to pay for it.

1. Clothing

The Parent requests reimbursement of $1141.90 expended for student
clothing that conforms to the dress code in effect at the Gow School. She argues that the type and amount of clothing needed to meet the Gow School dress code is not usual and customary for the Student and therefore is akin to a uniform requirement. Without proper clothing, she notes, the Student is not permitted to attend school. The public school points out that there is no uniform requirement at the Gow School, with the exception of some interscholastic sports uniforms. The clothing the Gow School expects to be worn by its students is described generally in the Gow handbook, can be purchased at nearly every store that sells clothing, and is not specialized to the School, or to this Student in any way. The public school notes that were the Student attending Agawam High School he would also need to purchase clothes, and that any of the items purchased for the Gow School would be equally appropriate for Agawam High School.

The Gow School handbook spells out the clothing expectations for each student:

1 blue blazer, 1 lightweight sport coat and 1heavyweight sportcoat

4-6 pairs of dress slacks (corduroy, wool, khaki, etc.)

4-6 dress shirts properly fitted to button at the neck
neckties

sufficient personal items for weekly laundry

1 raincoat
winter clothing, a winter jacket or coat, gloves and hat, boots for outdoor winter wear

leather dress shoes

sweaters

1 bathrobe, 1 pair of slippers (recommended)
casual clothing, athletic clothing

2 pairs of athletic footwear (one solely for gym use)

The handbook notes that the only “required” items are a navy blue blazer, and a pair of khaki slacks. It also notes that students are not required to purchase specific items of Gow school clothing except for some interscholastic sports uniforms. (S-A)

So the question is, is the purchase of specific items of clothing as suggested by the special education program necessary to ensure Quinlan’s access to the program, or to benefit from it? I think not. All students must wear clothing to attend school. Until they are ready developmentally and financially to assume that responsibility for themselves, parents typically select and fund student clothing. The amount of clothing, the style of clothing, the condition of clothing, the origin of clothing, selected by the student and/or parent depends on a variety of socio-economic, cultural, political, religious, and personal factors. Adherence to a school sponsored dress code is just one factor influencing choice of clothing. A dress code is not equivalent to a uniform. There is no indication here that Gow requires students to purchase identical items from a single source at a standard price that would be unsuitable for use or wear outside of the Gow school environment. Nor is there any indication that as a result of a disability the Gow School requires the Student to wear specialized clothing. Indeed there is nothing extraordinary about the clothing list in the Gow School handbook. The list does not suggest any uniformity of color, fiber, or cut that would render student clothing inappropriate for general wear. It does not suggest that without a particular style or brand or combination of clothing a student will de denied access to the Gow school programs. The fact that the Parent purchased Quinlan’s clothing “off the rack” from such mainstream suppliers as Filene’s, Kohl’s, Abercrombie and Fitch, J.C. Penny and Men’s Wearhouse indicates that they are neither specialized nor uniform. (P-1) To the contrary, these purchases show that the purchased clothing is intended for everyday wear by everyday people in a variety of everyday life situations not limited to attendance at the Gow School. The fact that the purchased items may not conform to the Student’s taste for school attire does not render the clothing unsuitable for use outside Gow. There was no showing here that any particular item of clothing was necessary for Quinlan to access Gow, or to benefit from the special education program there. Further, there was no showing that, by expending family funds for everyday clothing, Quinlan was in a different position than his nondisabled peers.4 Therefore I find that the Student’s clothing purchased by the Parent for use at the Student’s residential special education placement does not qualify as a “related service” for which public funds may be expended.5

2. Laundry

The Gow School has laundry machines in the dormitories which are available for student use at a charge of $50 per semester. Alternatively students may contract with a laundry service for approximately $700 per year. (S-A) The public school paid the $50 per semester laundry fee to permit Quinlan to do his own laundry free of charge in the dormitory. The Parent and Student request public funding for the laundry service arguing that Quinlan is too busy focusing on his studies and otherwise too tired to launder his own clothing. (P-2) There is no indication in the Student’s IEP that he has any cognitive, emotional, or physical disability which would prevent him from performing this developmental activity of daily living skill. Nor is there any goal in the IEP which use of laundry service would address. (P-11) Neither is there any evidence in this record that a laundry service is required in order that Quinlan have access to the Gow School or to benefit from its special education program. As the Gow School provides self-service laundry facilities to its students, I find that Quinlan’s use of those machines would not endanger his placement at the Gow School. He might even derive a significant, if ancillary, educational benefit from doing so. Therefore I find that the laundry service requested by the Parent is not a necessary “related service” for Quinlan.

3. Telephone

The Gow School provides telephone jacks, voice mail, and free local calls in every dormitory room. Students and parents must provide their own calling cards for long distance charges. Cell phones are not permitted. (S-A; P-6) The Parent requests an allowance of up to $25 per month from the public school to cover the cost of parent-student telephone calls. She argues that the long distance phone charges are incurred solely because the public school has determined that the Student cannot receive a free, appropriate public education locally. She maintains that any expenses the Parent bears as a result of this determination should be borne by the public school in order to ensure that the Student actually receives a free , appropriate public education. The public school contends that the telephone charges are personal in nature and not necessary for the Student to access or benefit from the special education program at the Gow School. I agree.

There is no indication in Quinlan’s IEP that he has any emotional, behavioral, or communication needs which require a certain level of home-school communication. There are no goals or objectives in his IEP for which use of the telephone, or communication with Parent, is necessary. (P-11) Therefore I cannot find that the public school’s failure to provide long distance calling card service to the Student erects a barrier to his participation in the special education program at the Gow School, or denies him a benefit of participation in that program. 34 CFR 300.13.

4. Transportation

There is no dispute that the public school is responsible for, and does in fact provide, door to door transportation for the Student between his residence and his residential program for all authorized school holidays, as well as at the beginning and end of each term. The Parent requests, in addition to that service, that she be reimbursed for her travel to the Gow school to attend parent-teacher conferences, music concerts, sports events, parent weekends and other school activities to which parents are invited. She further requests that Agawam authorize her travel when necessary to visit Quinlan when he is ill, or has forgotten a necessary personal item (such as a retainer), or to maintain good parent-child communication. She suggests that she be compensated for mileage, lodging for at least two nights up to $85 per night for herself and a companion she needs to assist her with the 6-7 hour drive, and food. In the alternative the Parent would be satisfied with reimbursement for airfare to the nearest airport and a rental car. The School contends that it is meeting its statutory and regulatory obligations by providing necessary transportation to the Student, and that it is not authorized under Massachusetts’s law to provide transportation to a Parent.

I note that transportation is a “related service” defined in the IDEA regulations as:

I. Travel to and from school and between schools:

II. Travel in and around school buildings; and

III. Specialized equipment (such as special or adapted buses, lifts, and ramps), if required to provide special transportation for a child with a disability.

34 CFR 300.24(b)(15). See 20 U.S.C. § 1401(22)

In keeping with other “related services” publicly provided transportation for the Student is required when necessary to access or to benefit from the agreed upon special education program. There is no provision in either federal or state law for parent transportation. All regulatory references to transportation cite the Student’s need for or right to transportation consistent with the IEP and appropriate safety standards. 603 CMR 28.05(5); 603 CMR .06(8). Indeed Massachusetts regulations governing a public school district’s fiscal responsibilities specifically limit reimbursement for mileage to that incurred by each eligible “student”. 603 CMR 10.00

Quinlan’s IEP does not have any goal, objective or accommodation that would necessitate a parental presence at the Gow School. While the Parent’s desire for involvement in the Student’s educational program is admirable and understandable, there is no indication in this record that Quinlan cannot participate fully in the special education program at the Gow School in the absence of the Parent.

As a related service, the transportation needs of the Student, other than those minimally required times when the residential program is closed, should be a part of a Team discussion of appropriate services that are demonstrably related to the achievement of objectives in the Student’s IEP. See: Letter to Dorman, 211 IDELR 70 (OSEP 1978); North Allegheny School District v. Gregory P., 25 IDELR 297; 687 A.2d 37 (PA. 1996). Neither the IDEA nor the Massachusetts special education law contemplates providing publicly funded transportation to a parent for visits to a student placed residentially in an out-of-district special education program. Having found no evidence in this record to indicate that the Parent’s presence at Gow at any time is related to the achievement of any objective in Quinlan’s IEP I find that parental transportation cannot fairly be characterized as a “related service” and that Agawam’s refusal to fund the Parent’s request is proper.6

5. Laptop Computer

The Gow School “strongly encourages” students to bring their own computers for use in the classroom and in study halls. (P-4, S-A) A personal computer is not, however, required as a condition of attendance at Gow. School computers are available for student use in the study hall and in the library. (P-4) Quinlan’s IEP does not provide for a school funded laptop computer. There are no goals or objectives or accommodations, which would require the use of a personal computer. On July 18, 2003, the Parent rejected that portion of the 2003-2004 IEP, which failed to include the use of a laptop computer as an accommodation when taking statewide assessments. (P-9, P-11 p.12) There is no indication in the record that a team was reconvened to address this part of the rejected IEP. Between the time the Parent rejected the lack of computer accommodation during testing and the submission of documents to the Bureau for decision, the Student changed schools, the Parent accepted an IEP Amendment for the new placement at Gow and requested a hearing. That Amendment did not address computer use. (P-13) There is no evidence in the record dated before the submission of documents to support the Parent’s request for a school funded laptop computer for Quinlan. On January 28, 2004, the Parent submitted an additional document to the Bureau for inclusion in the hearing record. No objection was lodged by the School. The document is a “To Whom it May Concern” letter, dated January 26, 2004, from Daniel Kelley of the Gow School stating that due to his disability in written expression Quinlan requires a laptop computer to complete coursework at Gow. There is no other information concerning Quinlan’s computer needs, if any, in the record.

In Canton Public Schools , 6 MSER 239 (2000), the Bureau addressed the issue of whether under Section 504 a school must provide a laptop computer to a student with significant dysgraphia. Hearing Officer Reece Erlichman found in that case that the parent submitted sufficient, credible evaluative documentation of the Student’s need for this accommodation in order to access and benefit from his otherwise mainstream placement. In the instant matter, the predicate information for such a finding is lacking. It is not clear whether the Student seeks provision of a personal laptop computer just during testing, or for all academic purposes. There is no evaluation in the record which would permit a cogent analysis of whether the Student’s unique needs require the use of a personal laptop computer in the context of in an entirely special education program in which all students have ready access to computers. The only information on this point, introduced baldly without Team consideration, comes from the head of the upper school at Gow. Given the potential for bias and the lack of foundation on the generation of this document, I do not accord it much weight. See: Wynne v. Tufts University of Medicine , 932 F.2d 19 (1 st Cir. 1991)

Whether the use of a laptop computer is necessary in order for Quinlan to access the special education program at the Gow School, or to benefit from it, is a question for the Team to resolve in the first instance. On this record there is insufficient proof that a laptop computer is related to the achievement of any goal or objective currently a part of Quinlan’s IEP.

ORDER

Personal clothing, laundry, phone calls, parental transportation and a laptop computer are not components of a free, appropriate public education for Quinlan. The Parent is not entitled to public reimbursement of personal funds expended for those purposes during the 2003-2004 school year. Agawam is responsible for reimbursing the Parent, at the state-approved rate, and upon presentation of appropriate documentation, for any parentally provided student transportation to or from the Gow School or the Kildonan School when those residential programs were closed for authorized breaks. Agawam is also responsible for convening a Team meeting to discuss the Student’s request that a school funded laptop computer be provided as part of his special education program.

Lindsay Byrne, Hearing Officer


1

“Quinlan” is a pseudonym chosen by the Hearing Officer to protect the privacy of the Student in publicly available documents.


2

Other Massachusetts regulations govern the public school district’s responsibility for costs associated with an out of district special education placement. See 603 CMR 10.00, 10.07. These regulations require that the district’s funds be used for special education and related services specified in approved individual education [plan] and limit payment to those costs billed by the special education providers and approved in advance by the Massachusetts Department of Education. 603 CMR 10.07


3

Though Tatro was decided under the EAHCA, the predecessor statute to the currently named IDEA, the pertinent provisions of the law are identical.


4

I note that many public schools have dress codes. Applicability and enforceability of these dress codes have been considered at some length by federal and state courts in this jurisdiction as in many others. See eg.: Pyle v. South Hadley , 861 F. Supp. 157 (D. Mass. 1994); 55F 3d 20 (1 st Cir. 1995); 423 Mass 283, 667 N.E. 2d 869 (1996). See also : 58 ALR 5 th 1, Sec. 42(b) and 14 ALR 3d 1204. My research, however, revealed no recorded case in which a parent raised the issue of economic injury as part of a challenge to public school dress codes.


5

See also: 603 CMR § 28.06 (3): 808 CMR § 1.00


6

Were there support for categorizing parental transportation as a “related service” that request would be subject to the Team process, incorpration into an IEP and administrative review for appropriateness. Aaron M. v. Yomtoob , C.A. 00-27732, N.D. Ill. Nov. 25, 2003; See also : Fick v. Sioux Falls , 337 F 3d 968 (8 th Cir. 2003); Cohen v. School Board , 450 So. 2 nd 1238 (Fla. App. 1984).


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