COMMONWEALTH OF MASSACHUSETTS
BUREAU OF SPECIAL EDUCATION APPEALS
In RE: Sharon Public Schools and Paul1
BSEA# 08-4524
Ruling
This matter comes before the Bureau on the Motion of the Parents to Withdraw the Student from Special Education and the School’s Opposition thereto. The Parents’ request to discontinue special education services to Paul was initially made in their February 20, 2008 Response to Sharon’s Request for Hearing, reiterated during a conference call with counsel for Sharon Public Schools and the Hearing Officer on March 7, 2008, and submitted in a formal motion on March 13, 2008. The School submitted a written Opposition to the Parents’ Motion on March 13, 2008. The pertinent facts are not in dispute and may be briefly summarized.
Paul is an 11 year old 5 th grade student. He has been receiving special education services continuously since Kindergarten. The last accepted IEP calls for Paul to receive instructional support in the regular 5 th grade classroom, and additional direct special education service in the Developmental Learning Program. The “DLP” is designed to meet the needs of students with limited cognitive ability, a slower rate of learning, and receptive and/or expressive language difficulties. Paul also receives related services in and out of the mainstream classroom.
The parents have rejected Paul’s current IEP and seek immediate, full-time placement in the mainstream 5 th grade class. They contend that Paul does not have any need for special education and will make more effective educational progress through immersion, without school based assistance, in the regular curriculum and environment.
The school contends that Paul’s special education needs are well documented and are being appropriately addressed under the current IEP which constitutes his “stay put” placement during any dispute. The School argues that Paul cannot make effective educational progress without the services and supports in the current IEP and, therefore, placement in a full time regular education program would deny Paul the free, appropriate public education to which he is entitled under federal and Massachusetts law.
This matter is set for a due process hearing on March 20, 2008 to consider the substantive disagreements about the appropriateness of Sharon’s proposed special education services for Paul. This ruling addresses only the Parents’ request that all special education services be immediately terminated.
Both federal and state statutes permit publicly funded special education services to be provided to students only with, and only to the extent of, informed parental consent or court order. 20 U.S.C. § 1414 (a)(D)(II);2 M.G.L.c 71B § 3. Massachusetts special educations regulations require school districts to obtain parent consent “before placing a student in a special education placement subsequent to the initial placement…” 603 CMR 28.07(1)(a). The regulations further explicitly provide: “A parent may revoke consent at any time.” 603 CMR 28.07(1)(a)(1).
For those instances when a school district determines that a parent’s refusal to consent results in a denial of a free, appropriate public education, the school may use the due process procedures available through the BSEA to obtain administrative findings and a declaration that it has discharged its obligation to the student and parents.3 Enforcement of any administrative decision which could curtail a parent’s consent to provision of special education services is, however, committed by statute to the Superior Court. M.G.L.c. 71B § 3. There is no statutory or regulatory authority for an administrative override of a parent’s refusal to provide consent to special education. Only a court can limit parental consent rights and enforce the student’s own right to special education services over the parent’s objection.
The question presented here posits this matter squarely at the intersection of a disabled student’s individual entitlement to a free, appropriate public education and the corollary right of the student’s parent to control the child’s upbringing, including the form and extent of education. The School District raises intriguing arguments about the collision between compulsory school attendance laws, the educational rights of students with disabilities and the role of parental consent in the IDEA 2004 and M.G.L.c. 71B, which merit further consideration. While the language of the “stay put” regulations found at 603 CMR 28.08(7) does provide some support for the school’s view that Paul is entitled to continuation of special education services while the school’s request for a determination of the appropriateness of its proposed IEP for Paul is pending, it is not the only applicable regulation. When it is read together with the federal admonition that an administrative appeal may not be used to force or substitute parental consent to special education services, the Massachusetts regulation requiring current parental consent to any special education service appears to supersede the “stay put” provision, regardless of the potential educational harm to the eligible student. At this moment, I am persuaded by the plain language of the federal and state special education statutes and their implementing regulations, that the drafters intended parents to have the ultimate say in provision of special education services to their disabled children, unless a court limits their judgment. I note that this conclusion is consistent with findings made in prior judicial and administrative cases presenting similar questions concerning the scope of a parent’s right to consent or refuse consent to special education services.4
Here, once the Parents revoked their consent to all special education services, as they have done repeatedly in writing directly to the school and to the BSEA, Paul became a regular education student. This means that Paul is subject to the regular education curriculum requirements and expectations, grading and promotion policies, testing and evaluation procedures, and discipline code. If he does not progress effectively in regular education because of his disabilities there is no allowable claim for compensatory services. If he is removed from the regular education setting as a result of his behavior there are none of the procedural protections afforded to students with disabilities under special education law. Any school related issues that may arise as a result of the parent’s decision to remove special education supports from Paul will follow the procedural course available to students without disabilities. Should the School determine that Paul’s safety or the safety of other students is jeopardized due to the lack of special education programming, the school may apply to court for approval to remove Paul to an alternative educational setting.5
Therefore, the Motion of the Parents to Terminate all Special Education and Related Services to Paul is GRANTED .
______________________ ________________________
Date: March 19, 2008
Lindsay Byrne
Hearing Officer
1
‘Paul’ is a pseudonym chosen by the Hearing Officer to protect the privacy of the Student in documents available to the public.
2
The regulation implementing this statutory section reads:
(b) Parental consent for services.
(1) A public agency that is responsible for making FAPE available to a child with a disability must obtain informed consent from the parent of the child before the initial provision of special education and related services to the child.
(2) The public agency must make reasonable efforts to obtain informed consent from the parent for the initial provision of special education and related services to the child.
(3) If the parent of a child fails to respond or refuses to consent to services under paragraph (b)(1) of this section, the public agency may not use the procedures in subpart E of this part (including the mediation procedures under § 300.506 or the due process procedures under §§ 300.507 through 300.516) in order to obtain agreement or a ruling that the services may be provided to the child.
(4) If the parent of the child refuses to consent to the initial provision of special education and related services, or the parent fails to respond to a request to provide consent for the initial provision of special education and related services, the public agency –
(i) Will not be considered to be in violation of the requirement to make available FAPE to the child for the failure to provide the child with the special education and related services for which the public agency requests consent; and
(ii) Is not required to convene an IEP Team meeting or develop an IEP under §§ 300.320 and 300.324 for the child for the special education and related services for which the public agency requests such consent.
34 CFR 300.300(b). See also : 20 U.S.C. § 1414(a)(D)(II)
3
3
603 CMR 28.07 (1)(b) provides: (b) If, subsequent to initial evaluation and initial placement and after following the procedures required by 603 CMR 28.00, the school district is unable to obtain parental consent to a reevaluation or to placement in a special education program subsequent to the initial placement, or the parent revokes consent to such reevaluation or placement, the school district shall consider with the parent whether such action will result in the denial of a free appropriate public education to the student. If, after consideration, the school district determines that the parent’s failure or refusal to consent will result in a denial of a free appropriate public education to the student, it shall seek resolution of the dispute through the procedures provided in 603 CMR 28.08. Participation by the parent in such consideration shall be voluntary and the failure or refusal of the parent to participate shall not preclude the school district from taking appropriate action pursuant to 603 CMR 28.08 to resolve the dispute.
4
5
See discussion at: Cohasset v Ethan L. Ma.Sup.Ct. CA 07-01506, Dec. 18, 2007. See also: Cohassett Public Schools , 13 MSER 319 (2007); Wakefield Public Schools , 12 MSER 171 (2006).
5
20 U.S.C. § 1415 (K)(5)(C).