COMMONWEALTH OF MASSACHUSETTS
BUREAU OF SPECIAL EDUCATION APPEALS
BSEA #07-2498
IN RE: ROGER1 & SPRINGFIELD PUBLIC SCHOOLS et al2
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 corresponding regulations. By mutual request of the Parties this decision is issued solely on the pleadings and written material submitted by the Parties.
ISSUES
Does Roger’s placement at a Department of Mental Retardation (DMR) group home provide him with a free appropriate public education (FAPE) in the least restrictive environment (LRE) and as such is amenable to approval and funding by the Department of Education (DOE)?
FINDINGS OF FACT
1. Roger (d.o.b. March 6, 1985) is an almost twenty two year old student with a diagnosis of autism, severe intellectual impairment,3 and a psychotic disorder NOS. Roger also has a partial complex seizure disorder and obesity and has engaged in self injurious behavior that has resulted in blinding himself in his right eye; see Guardian’s hearing request; affidavit of co-guardians; permanent guardianship November 3, 2005. Roger’s last accepted IEP designates a residential placement that addresses instruction in activities of daily living (ADL), prevocational skills and communication; see (IEP 6/7/06-3/5/07).
2. Springfield has made several attempts to place Roger in a residential program; however due to his age and his needs no residential program would accept Roger. Therefore Roger remained at the Life Skills program at the Central High School in Springfield MA and continued to reside with elderly parents who could not, because of their own severe medical and psychiatric needs, and Roger’s needs, provide Roger with the structure and the constant supervision he requires; see Co-Guardian’s hearing request.
3. DMR has been servicing Roger due to his severe intellectual impairment. DMR’s plan has been to provide Roger, commencing on his 22 nd birthday (March 6, 2007), with services in a group home placement that would address his behavioral needs as well as prevocational instruction, communication, progression of independent living skills and services to address anxiety; see DMR report, February 12, 2007.
4. The co-guardians filed a hearing request on October 20, 2006. A Hearing Officer initiated conference call with the Guardian’s Counsel, Springfield, and DMR occurred on November 3, 2006. At that time DMR agreed to explore whether it could accept Roger into a program prior to his 22 nd birthday. Springfield agreed to fund this program as a residential placement if it could obtain approval from the Massachusetts Department of Education (DOE).
5. Roger was accepted into one of DMR’s contracted programs on or before November 29, 2006.4 DMR agreed to place Roger in this facility and Springfield agreed to file a Notification of Intent to Use an Unapproved program5 with DOE so that it could fund the program. The Parties also developed a transition plan for Roger. Roger was transitioned into the program in December 2006 and January 2007.
6. On or before January 23, 2007, DOE denied Springfield’s request for funding approval because a group home was not considered a school program and DOE did not have a mechanism for funding Springfield’s request; see Springfield’s motion to join DOE, January 23, 2007.6
7. Roger remains at DMR’s Center for Human Development (CHD) Meadows Homes in Southwick, MA (hereafter CHD). Roger is one of three men serviced in this facility; see Springfield’s Notification of Intent, December 6, 2006. CHD provides Roger with prevocational instruction, including but not limited to instruction in ADL skills including personal care, cooking, cleaning money management and community integration. CHD also provides Roger with services to address his behavior and provides support to address Roger’s anxiety. CHD also provides services in communication; see DMR report, February 12, 2007. These services comport with the residential services proposed in Roger’s last accepted IEP for residential placement; see IEP.
CONCLUSIONS OF LAW
Roger’s last accepted IEP designates that he receive a residential program to address communication, ADL skills, prevocational skills and behavior and therapeutic services. Springfield had sent packets to several residential programs without success. Roger will turn 22 on March 6, 2007 and will become the responsibility of DMR. Until that time Springfield is required to provide a residential program that provides Roger with the services he requires in order to receive a FAPE in the LRE. CHD provides the individually designed instruction that Roger requires in a residential setting. As such, for this unique student in these unique circumstances, CHD meets the definition of a residential school for this student; see Westwood Public Schools, 5 MSER 118.7 Therefore, DOE shall approve Springfield’s application to use CHD as a residential program for Roger.
By the Hearing Officer,
Joan D. Beron
Date: February 23, 2007
1
Roger is a pseudonym used for confidentiality and classification purposes in publicly available documents.
2
DMR and DOE voluntarily agreed to participate as Parties in these proceedings.
3
The latest testing indicates a Full-scale score of 59 on the WAIS-III; see Springfield’s response, November 6, 2006.
4
Roger would have been appropriate for a few programs but could not be accepted until an opening was available.
5
Pursuant to 603 CMR 28.06(3)(e)(4) a school district must obtain approval from DOE to place a student in an unapproved program if the District has been unable to identify an appropriate, approved program and must pursuant to 808 CMR 1.00, obtain pricing forms from the proposed placement to complete to set program prices for the unapproved program. DOE then will within 10 days notify the School District if there are any objections to the proposed placement or request additional information or documentation.
6
DOE voluntarily agreed to become a party on February 1, 2007.
7
Westwood was decided under a sole source of care statute. The analysis however is applicable.