Re: Student v. Hamilton-Wenham Public Schools – BSEA #04-4201



<br /> Re: Student v. Hamilton-Wenham Public Schools – BSEA #04-4201<br />

COMMONWEALTH OF MASSACHUSETTS

SPECIAL EDUCATION APPEALS

In Re: Student v. Hamilton-Wenham Public Schools BSEA # 04-4201

RULING ON HAMILTON-WENHAM PUBLIC SCHOOL’S MOTION TO DISMISS

On April 12, 2004, Parents in the above-referenced matter filed a request for Hearing stating that Student had been without an education since November 2002, that the Hamilton-Wenham Public Schools (hereinafter, “Hamilton-Wenham ”) had been ordered to place Student residentially; and that Student still “sits at home.” Parents further stated that they were anxious to “start the different steps that [were] needed in order for him to be able to overcome the emotional distresses that he has had to be subjected to as a result of not being able to be successful and experiencing only failures.” In essence, Parents alleged non-compliance by Hamilton-Wenham of a decision issued by me in November 2003.

Hamilton-Wenham filed a Motion to Dismiss pursuant to 801 C.M.R. 1.01 et seq., 603 C.M.R. 28.08(3) and (6) and Rule 6 of the Hearing Rules for Special Education Appeals. Hamilton-Wenham also filed exhibits and a memorandum in support of its motion on April 23, 2004 and requested to be heard on the motion. A motion session was held on May 4, 2004 and the record remained open until May 5, 2004 to afford Parent an opportunity to submit a tape of the two meetings she had in March 2004. One meeting was held on March 8 th at the Harbor School and one on March 10 th with Debbie Frontierro of Hamilton-Wenham. On May 3, 2004, prior to the Motion Session, Parents submitted 14 exhibits in support of their request to place Student. Their final exhibit, the tape, was received on May 5, 2004.

School Exhibits 1 to 4, and Parent’s Exhibits 1 to 12 and 15 were considered in addition to the Parties’ oral and written arguments for the purpose of rendering this ruling. I have adopted part of Hamilton-Wenham’s proposed facts. I further took administrative notice of BSEA # 04-1791 & # 03-3932, the matters on which Parents now allege non-compliance.

Present during the Motion Session were Attorney Richard Sullivan representing Hamilton-Wenham, Deborah Frontierro, Special Education Director for Hamilton-Wenham, and Student’s Mother, appearing Pro Se.

The Relevant Facts in this matter are as follow:

1. On or about October 27, 2003, this Hearing Officer presided over a BSEA Hearing regarding the appropriateness of Student’s individualized education plan (IEP) as proposed by the District for the period from October 2003 through October 2004. The IEP proposed a residential placement of Student at Harbor School, to be cost-shared by the District and the Department of Social Services (hereinafter, “DSS”).

2. On November 3, 2003, a final decision in BSEA # 04-1791 & # 03-3932 was issued finding that the proposed placement at Harbor School was appropriate. Hamilton-Wenham and DSS were ordered to place the Student at Harbor. Hamilton-Wenham was ordered to work with Harbor to re-evaluate Student once he became stabilized in his new educational environment. Attached to the Decision was a two page document, which notified the parties of the effect of the BSEA decision and their right to appeal within 30 days of the day on which the decision was received. (SE-1)

3. The decision was sent certified and the return receipts indicate that Parents received their copy of the decision on November 5, 2003 and Hamilton-Wenham received it on November 4, 2003. (Administrative review of BSEA # 04-1791 & # 03-3932)

4. Via letter dated November 6, 2003, Ms. Deborah Frontierro, Hamilton-Wenham’s Director of Special Education, informed Parents that she was in receipt of the Decision and that Hamilton-Wenham would implement and fund its portion of Student’s placement at the Harbor School upon parental consent to do so. (SE-2)

5. On December 15, 2003, the BSEA received the Parents’ request for a copy of the tapes from the Hearing in BSEA # 04-1791 & # 03-3932. The tapes were mailed on December 31, 2003. (Administrative review of BSEA # 04-1791 & # 03-3932)

6. On February 2, 2004 Ms. Frontierro informed Parents that despite Student’s decision not to attend the Harbor School in compliance with the Hearing Officer’s Order, Hamilton-Wenham was nevertheless prepared to implement the services upon consent. (SE-3; PE-2)

7. On February 19, 2004, Ms. Frontierro received a letter from Parents informing her that they would like Student to begin attending the Harbor School and requested information as to how to transition him into the program as soon as possible. They further requested advice as to how Ms. Frontierro wished to proceed. (PE-6)

8. In response to the Parents’ request, regarding Student’s entry into the Harbor School program, Ms. Frontierro contacted the Parent by telephone to inform her that an intake meeting with the Harbor School’s residential team would be scheduled as soon as possible.

9. Via letter of February 24 th received on February 25, 2004, Parents informed Ms. Frontierro that they did not see a need to have a meeting with the Harbor School staff, that it had already been established that Student should attend that program and that any further meeting would further “waste [their] son’s time.” (PE-7) Parents asserted that Student was “emotionally distraught and very upset at the thought of attending Harbor School,” that he had been out of school since November 2002 and that Parents wanted to comply with the decision and have Student placed soon. They requested that Hamilton-Wenham not delay the process. (PE-7)

10. On February 25, 2004, Ms. Frontierro wrote to Parents. Again she informed them that she had been in touch with Suzanne Jalbert from Harbor School to set up the intake meeting, since the Team had to meet to facilitate the transition process. (PE-4) She told Parents that it was essential that Student and Parent attend the meeting in order to transition Student into the program as smoothly as possible. (PE-4)

11. On February 27, 2004, Parents again informed Ms. Frontierro that an intake meeting at Harbor was a waste of their son’s time, and that another meeting was unnecessary. According to Parents what was needed was for Ms. Frontierro to comply with the Hearing Officer’s order promptly. (PE-8) Parents further stated, “please understand that [Student] is very upset and does not want to go to the Harbor School program, so therefore we need your help in order to comply with the findings of the hearing officer. We are leaving it in your hands to find a way to get [Student] to attend the school as soon as possible.” (PE-8)

12. In March 2004, Parents requested that Hamilton-Wenham send a referral packet to Swift River Academy. (PE-11; PE-15) In response to Parents’ request and in an effort to “reconcile their differences,” as instructed by the Hearing Officer in the November 2003 decision, Ms. Frontierro sent a referral packet to Swift River Academy immediately upon receiving the Parents’ consent on March 10, 2004. (PE-4; PE-11; PE-15) The placement proposed in Student’s IEP for the period from October 2003 through October 2004 remained the program at Harbor School, should Student and Parents choose to avail themselves of it.

13. On or about the last week of March, beginning of April 2004 Student went to Swift River Academy and stayed for a couple of days. On April 7, 2004, Paul Ravenscraft, Senior Admissions Counselor at Swift River Academy, wrote to Parents explaining that Student would not be able to attend Swift River because of “his oppositional behavior and the perceived run-risk.” (PE-12) He recommended that Student participate in a therapeutic wilderness program and if he completed said experience successfully he could return to Swift River Academy. (PE-12)

14. On April 8, 2004, Parents wrote to Ms. Frontierro stating that because Student had been out of school since November 2002 the interruption had impacted on his motivation to attend any school program. (PE-9) Student had spent a great deal of time talking with the staff at Swift River while he was at that program during the end of March and beginning of April 2004, and Swift River personnel wrote to Parents recommending that he be placed in a wilderness program. (PE-9) Parents therefore, requested that Hamilton-Wenham place Student in the Adirondack Leadership program in Saranac Lake, New York, a non-academic wilderness program to which Student would be escorted once Hamilton-Wenham set up the paper work and paid the tuition. (PE-9)

15. On April 10, 2004 Parents requested the Hearing on non-compliance with the Decision of November 10, 2003 which is subject to this Motion to Dismiss. (PE-10)

16. On April 12, Ms. Frontierro informed Parents that during the 17 months that Student had been out of school she had sent more than a dozen referrals for Student who had been accepted to three different therapeutic day schools and two residential programs. Student had either attended those programs for one day and did not return or refused to attend altogether. (PE-5) Also, Ms. Frontierro believed that the Harbor School continued to be an appropriate placement for Student, a placement which was consistent with the Order of November 3 rd . She informed Parents that Hamilton-Wenham was not responsible or obligated to place Student in an out of state, non-academic wilderness program. (PE-5) Ms. Frontierro further stated that, given Student’s non-educational related issues, taking him out of the home environment and sending him to the wilderness program, might be productive, but Parents would have to do this at their own expense. If Student successfully completed the minimum 28 days in that program Hamilton-Wenham would reimburse Parents for the cost of the program ($395.00 per day) upon submission of proof of expenses (ie., cancelled checks, paid invoices) and proof of successful completion of the wilderness program. (PE-5)

17. Today, Student is 17 years of age. (PE-15)

Conclusions of Law:

In the instant case Parents argue that Hamilton-Wenham failed to place Student as ordered in the decision issued on November 3, 2003. According to Parents, they were not certain what would happen after the decision was issued so for months they waited at home for intervention from Hamilton-Wenham. During those months Student did not want to go to Harbor School and according to Parents, his psychiatrist advised Parents that he should not be forced to go there if he did not want to go. Mother conceded receipt of Hamilton-Wenham’s letter of November 6, 2003 offering to place Student at Harbor School as soon as Parents and Student were ready. (SE-2)

During the following months Parents did not communicate with Hamilton-Wenham until Ms. Frontierro again approached them via letter of February 9, 2004, after which Parents requested that Student be transitioned into the Harbor School. Parents did not attend the intake meetings and in March 2004 requested that Student be placed at Swift River Academy. When this placement failed within the first couple of days, Parents requested on April 8 th that Hamilton-Wenham fund a wilderness program in New York.

Hamilton-Wenham asserts that since issuance of the decision it has offered to place Student at the Harbor School, as directed by the decision. It drafted an IEP consistent with said placement and has continued to inform Parents of its willingness to place Student there. It has also arranged meetings at Harbor School in an attempt to comply with my order. To date it remains ready, willing and able to place Student at the Harbor School as soon as Parents and Student who is now 17 years of age wish to go ahead with this placement. According to the District, its willingness to place Student at Swift River Academy was an attempt to reconcile its differences with Parents. Hamilton-Wenham argues that Parents’ new request for hearing constitutes a review of the final decision issued by the BSEA, something forbidden under the statute, and would result in reconsideration of the case. Parents had an opportunity to appeal my decision to a court with pertinent jurisdiction, were so notified, and failed to do so. Hamilton-Wenham argues therefore, that this case should be dismissed.

The BSEA and the Standard Adjudicatory Rules of Practice and Procedure governing BSEA proceedings both provide that a Hearing Officer may allow a motion to dismiss if the moving party fails to state a claim upon which relief can be granted. 801 C.M.R. 1.01:(7)(g)(3). Similarly, the federal courts have concluded that a motion to dismiss under Federal Rules of Civil Procedure 12(b)(6) may be allowed if the court finds “beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.”

Upon consideration of the information before me, I agree that Parents’ request constitutes an attempt to reopen the previous matter on which a decision was issued in November 2003, and find that Hamilton-Wenham’s Motion must be ALLOWED . In reaching this conclusion I note as follows:

BSEA decisions are final and not subject to reconsideration:

BSEA decisions are final and not subject to further agency review. 20 U.S.C. § 1415(I)(l)(B); see also BSEA Hearing Rule 12. Accordingly, the BSEA cannot permit motions to reconsider or to re-open a case where a decision was issued. 603 C.M.R. 28.08(b). Moreover, BSEA decisions are final decisions subject only to judicial review from a court having jurisdiction over the party’s appeal. M.G.L. c. 30A, § 14; 801 C.M.R. § 1.01 (13); BSEA Hearing Rule 13; see also, Mass. Dept. of Education , 18 IDELR 1115 (OCR 1992).

Consistent with my decision of November 3, 2003, on November 6 th , Hamilton-Wenham made an offer to place Student at the Harbor School and drafted an IEP for said placement covering the period from October 2003 through October 2004. (SE-2) This offer was renewed on February 2, and 25, 2004, as well as orally on other occasions. (SE-3; PE-2) As of the day of the Motion Session, Hamilton-Wenham stated its continued willingness and preparedness to place Student at the Harbor School. On February 19 th , Parents manifested interest in having Student attend the Harbor School. (PE-6) However, they did not cooperate with Hamilton-Wenham to make this happen. Parents repeatedly refused to meet with the staff at Harbor School claiming that it was a waste of Student’s time. (PE-7; PE-8) As evidenced by Ms. Frontierro’s communication with the Parents and the Harbor School, Hamilton- Wenham has complied with the Orders in the decision rendered in November 2003, to place the Student at the Harbor School and work cooperatively with the Parents in order to effectuate this placement. It is further clear that Parents and Student have failed to make a genuine effort to cooperate with the District in the implementation of the Order. When presented with the opportunity to participate in Harbor School’s intake meeting, they refused to do so. They also failed to physically bring Student to the Harbor School at any time after November 3, 2003, because they “couldn’t force him to go there if he did not want to do so.” In the Parents’ letter of February 27 th Parents placed the responsibility for guaranteeing Student’s attendance at the Harbor School program in the hands of Ms. Frontierro, rather than their own. (PE-8)

The evidence shows that in March 2004, Parents requested that Hamilton-Wenham send a referral packet to Swift River Academy. Hamilton-Wenham was mindful of my admonition to the parties in the November 3, 2003 decision to “reconcile their differences.” In spite of Parents’ and Student’s inability to follow through with their end of the responsibility regarding my order for placement, in what appears to be an attempt to respond to Mother’s desperate cry for help regarding her son, Ms. Frontierro agreed to send a referral packet to Swift River Academy. Student attended only days before he once again sabotaged this placement. Once he got there, he did not wish to stay. (PE-12) Mr. Ravenscraft recommended that Student participate in a wilderness program and suggested the Adirondack Leadership program. (PE-9) Parents requested that Hamilton-Wenham fund this program and when the district declined to do so, Parents filed the request for Hearing now before me.

It seems from Mother’s statements and the documents presented by her, that while she was greatly concerned about her son’s education and having him placed, Student was not. I find that her new request for Hearing strives to have the previous case re-opened and Student’s placement changed. Given this, under the facts of this case, Parents are not entitled to a BSEA hearing in this matter. The evidence shows that the issue they are asking me to decide, the appropriateness of the District’s proposed IEP, was already addressed and disposed of in the decision issued on November 2003; a decision which Hamilton-Wenham has made every effort to implement without success due to Parents’/ Student’s unwillingness to cooperate.

Parents’ request for Hearing dated April 10, 2004 alleges no specific area of non-compliance and none was shown during the Motion Session. A challenge that a BSEA decision is not being implemented requires the moving party to set out the areas of non-compliance. 603 C.M.R. 28.08(6)(b). The decision of November 3 rd found that Student required residential placement and specifically found the Harbor School to be the appropriate placement. Hamilton-Wenham has offered the placement ordered by me. Parents’ request for hearing is merely an attempt to re-open the evidence to re-litigate issues regarding Student’s placement for the period from October 2003 through October 2004. This was the same time period and issues already litigated in BSEA #03-3932 and # 04-1791. Therefore, Parents’ new request for hearing cannot proceed.

Parents’ right of appeal:

In pertinent part, the two-page document attached to the Decision in BSEA # 04-1791 & # 03-3932, notified the parties of their rights to appeal. It states that:

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).

Under Massachusetts General Laws, Chapter 30A, Section 14(1), appeal of a final Bureau decision to state superior court must be filed within thirty (30) days of receipt of the decision. The federal courts have ruled that the time period for filing a judicial appeal of a Bureau decision in federal district court is also thirty (30) days of receipt of the decision, as provided in the Massachusetts Administrative Procedures Act, M.G.L. c.30A . Amann v. Town of Stow , 991 F.2d 929 (1 st Cir. 1993); Gertel v. School Committee of Brookline , 783 F. Supp. 701 (D. Mass. 1992).

Therefore, an appeal of a Bureau decision to state superior court or to federal district court must be filed within thirty (30) days from receipt of the Bureau decision by the appealing party.

Mother stated that they disagreed with my decision and appealed it by writing a letter to the Department of Education or the BSEA and they also wrote a letter which they mailed to the McCormick building in Boston. Parents further allege that they did not know what they were supposed to do or where they were supposed to appeal the decision. When reminded about the notice attached to the decision, which provided this information, Mother stated that it did not contain an address. Parent was asked if she had called anyone to obtain additional information, including any of the free or low cost legal entities on a list which had been sent to the Parents when they first requested the hearing. Mother said no. Administrative review of BSEA #04-1791 and #03-3932 show that between about June and September 2003 Parents/Student were represented by Sheila Deppner, an advocate knowledgeable in special education law. Thereafter, they were represented at Hearing by Attorney Alanna G. Cline. The BSEA satisfies its obligation by informing the parties of what their rights are. It is up to the party who wishes to appeal to determine the next step.

Hamilton-Wenham’s ability to implement the decision:

The IDEA at 20 U.S.C. §1412(a)(1)(A) requires the District to make FAPE “available” to an eligible student. It does not require a district to motivate that student to avail himself of the education services and placement offered, when as in the case at bar the student is not compelled by state law to attend school, and his Parents fail to require him to do so. Austin Indep. Sch. Dist. V. Robert M ., 168 F. Supp. 2d 635 (W.D. Tex. 2001).

Here, Student turned seventeen (17) years of age, and is no longer subject to the Commonwealth’s compulsory school attendance laws. M.G.L. c. 76, § 1. Accordingly, judicial remedies compelling the Student’s attendance at the Harbor School, which would be available to the District and DSS if the Student were under sixteen (16) years of age, are no longer an option. At this point, it is up to Student to decide that he wants to access an education and come forth requesting that Hamilton-Wenham effectuate the placement at Harbor School. Other than that, Hamilton- Wenham is under no obligation to offer anything different to what was stated in the decision of November 3, 2003. The evidence is persuasive that Hamilton-Wenham has met its legal obligation. Parents may certainly place Student privately and fund any other placement or program of their choice privately.

Ruling:

Hamilton-Wenham’s motion to dismiss the proceedings is GRANTED . This case is hereby DISMISSED .

So Ordered by the hearing Officer,

_______________________________

Rosa I. Figueroa

Dated: May 6, 2004


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