Swampscott Public Schools – BSEA #99-3434

<br /> Special Education Appeals BSEA #99-3434<br />

COMMONWEALTH OF MASSACHUSETTS

SPECIAL EDUCATION APPEALS

Swampscott Public Schools BSEA #99-3434

DECISION

This decision is issued pursuant to 20 U.S.C. 1401 et seq . (the “IDEA”), 29 U.S.C. 794, M.G.L. chs. 30A, 71B, and the Regulations promulgated under said statutes.

A hearing in the above-noted matter was convened on April 15, 19991 in Malden, MA, before Reece Erlichman, Hearing Officer. Those present for all or part of the proceedings were:

Student

Student’s Mother

Student’s Father

Deborah Dixson Pupil Personnel Director, Swampscott Public Schools

Mary Ellen Sowyrda Attorney, Swampscott Public Schools

Roseanne Stern Preschool Teacher, Swampscott Public Schools

Barbara Blumberg Speech and Language Pathologist, Swampscott Public Schools

Jennifer Reen School Psychologist, Swampscott Public Schools

ISSUES PRESENTED

Does the IEP proposed by Swampscott Public Schools (hereafter Swampscott), calling for Student’s placement in a 502.8(b) prototype integrated preschool program, with daily round trip transportation between his home and said preschool program, comply both substantively and procedurally with federal and state law regarding the provision of special education and related services to children with disabilities?

Is Swampscott responsible for providing Student twice weekly transportation from his preschool program to his day care center, which day care center is located outside the town limits of Swampscott?

Profile and History

Student is a three year old resident of the town of Swampscott. He presents with delays in speech and language, cognitive, and social/emotional skills. Deficits have further been noted in sensory processing and fine and gross motor skills. (See Exhs. P-2, P-4; refer to testimony of Father.)

Prior to attending Swampscott’s preschool program, Student participated in the United Cerebral Palsy Association’s Infant Toddler Early Intervention Program, through which he received speech/language, occupational and physical therapies. (Testimony Parent; Exh. P-5)

A TEAM meeting was held on February 3, 1999. The resulting 502.8(b) prototype IEP, covering the period February 1999-February 2000, called for Student’s placement in Swampscott’s integrated preschool program with an extended year component, provision of speech/language, occupational and physical therapies, and special transportation between home and school. (See Exhs. P-1, P-2, S-1.) Student began attending this preschool program, located at Swampscott High School, on February 24, 1999. (Testimony Father) On March 15, 1999 Parents rejected the transportation component of the IEP, while accepting all other provisions thereof. (Exh. S-1) It is this rejected IEP which is the subject of the instant appeal.

Student is enrolled in day care two afternoons per week at the Jewish Community Center of the North Shore, in Marblehead, Massachusetts. This facility is located seven tenths of a mile over the Swampscott/Marblehead line. (Exh. P-6) The day care center is not a special education program, does not purport to furnish Student required special education services, and hence is not a component of his IEP.

STATEMENT OF THE EVIDENCE

· Student’s father testified that he contacted Deborah Dixson, Director of Pupil Personnel Services, in December 1998 (in anticipation of Student’s transition from the early intervention program to Swampscott’s preschool program), and raised the issue of the town transporting Student from school to his day care provider in Marblehead. He indicated that he was then advised, as he similarly was on subsequent occasions, that the school system would not transport a student to a day care center located in another city or town. Father further testified that during a follow-up conversation in January 1999, Ms. Dixson advised him that while the law did not preclude the town from providing such transportation service, it similarly did not require same, and that it was Swampscott’s practice not to so do.

This witness went on to state that during a visit with his son to the preschool program in January 1999, he questioned the teacher (Ms. Stern), the speech therapist (Ms. Blumberg), and the school psychologist (Ms. Reen) about his transportation concern, and was informed that the decision was not theirs to make, but was rather the responsibility of Ms. Dixson. Father testified that this position was reiterated by Ms. Stern prior to the start of the February 3, 1999 TEAM meeting. He went on to say that later, at a March 1, 1999 meeting with Ms. Stern, he again addressed the transportation issue directly. She acknowledged that Ms. Dixson was not a member of Student’s TEAM, and, in response to further questioning about the TEAM’s decision-making responsibility with respect to transportation outside town limits, was told that the TEAM took its lead from Deborah Dixson.

· Rosanne Stern is the teacher of Swampscott’s integrated preschool program. According to Ms. Stern, the program is in session five days per week, from 8:30-1:30 on Mondays, Tuesdays, Thursdays and Fridays, and 8:30-12:30 on Wednesdays. She testified that Student is currently attending the program and accessing the transportation called for by his IEP.

This witness, who served as Chairperson for Student’s February 1999 TEAM, and is identified as liaison on his IEP, testified that she has no recollection of talking to Parent about transportation during a January 1999 meeting. She noted that the issue of transportation was in fact considered by the February 1999 TEAM, as is evidenced by the provision in Student’s IEP for special2 transportation daily between home and school. (See Exh. P-2, p.19, paragraph #6.) Ms. Stern went on to state that thereafter, when father inquired who should be approached with respect to his outstanding transportation concern, her assumption was that said concern related only to the issue of transporting Student to day care outside the town limits of Swampscott, and that all other aspects of the transportation model were acceptable. It was, therefore, only this aspect of the larger transportation issue to which she was responding when she stated that it was not something the TEAM could address; and it was also only this aspect of the transportation issue which she was referencing when she indicated, at the March meeting, that she would take her lead from Ms. Dixson with respect to the matter.

In Ms. Stern’s opinion, the IEP proffered by Swampscott (encompassing programmatic and transportation components) provides Student a free, appropriate public education in the least restrictive environment.

· Barbara Blumberg, speech and language therapist, Swampscott, provides Student daily speech and language services pursuant to his IEP. Ms. Blumberg testified that Student is at the 9-12 month babbling stage, cannot answer questions or state his name and address, and is just beginning to imitate and label. She expressed the opinion that Student is performing wonderfully in the preschool program, and that progress is being evidenced. She further indicated that he derives more benefit from his participation in the program on a daily basis than he would if he attended only three days per week.

Ms. Blumberg, who was also a member of Student’s February 1999 TEAM, testified that during said TEAM meeting Ms. Stern described the transportation component that would be provided, and that father was displeased and requested something additional. In her opinion, the transportation component of Student’s IEP is appropriate.

· Deborah Dixson is the Director of Pupil Personnel Services for Swampscott. She was not a member of Student’s February 1999 TEAM.

Ms. Dixson testified that she did in fact inform Parent that it is the practice of the town of Swampscott not to furnish students transportation beyond town boundaries, unless such transportation is required in order for a student to access a special education service called for by his IEP, as the town is not otherwise legally mandated to so do. She acknowledged that while the law does not prohibit a school system from providing said service, the decision is an administrative one, left to individual school systems.

Citing 603 CMR 28.313, Ms. Dixson distinguished between her system-wide administrative role with respect to determining policy and practice, and the role of the TEAM in determining appropriate transportation services for individual students with special needs. She asserted that her decision as to whether Swampscott will transport students outside town limits for non-special education services does not usurp a function delegated by law to the TEAM, as the service in question is not legally mandated. She further testified that in her capacity as administrator, she properly shares information with staff about policy, procedure and regulations, as she did in this case with Ms. Stern (regarding the transportation issue raised by Parents).

This witness went on to state that she provided Parents a list of transportation vendors with whom Swampscott has worked successfully over the years, vendors whom she viewed as safe and reliable.

FINDINGS AND DETERMINATION

Student is an individual with a disability, falling within the purview of the IDEA and M.G.L. c. 71B. As such he is entitled to a free, appropriate public education and an IEP which is reasonably calculated to assure his maximum feasible educational development in the least restrictive environment consistent with that goal. David D. v. Dartmouth School Committee, 775 F.2d 411 (1985). Neither his status nor entitlement is in dispute. The Parties are further in agreement as to the nature of his disability (see Profile, supra), the programming and specialized services required to address same, and the appropriateness of the program embodied in Swampscott’s IEP. The issue presented in this proceeding is thus a narrow one, limited to the question of the school district’s responsibility for providing Student transportation beyond town limits to his day care center, which is not a special education service called for by his IEP.

It is my determination, based upon a preponderance of the evidence presented and consideration of applicable federal and state statutes, regulations and case law, that the IEP proposed by Swampscott for Student comports both procedurally and substantively with federal and state mandates governing the provision of special education and related services to students with disabilities. I make the attendant finding that there is no legal basis for Parents’ claim that Swampscott is responsible for providing Student transportation from his integrated preschool program to his day care center, which is located outside the town limits of Swampscott. My reasoning follows.

The IDEA requires that school districts provide disabled students a free appropriate public education, which includes both special education and related services. 20 U.S.C. 1400(d)(1)(A). Federal and state law further define those related services that school districts are mandated to provide, and transportation is specifically designated as one such service. (See 20 U.S.C. 1401(22); 34 CFR § 300.24(a); 603 CMR 28.127, 28.503.2) The term transportation, as used in the federal regulations, is defined, in pertinent part, at 34 CFR § 300.24(b)(15)(I) as, “Travel to and from school and between schools.”

Massachusetts regulations further detail the responsibility of school districts with respect to the provision of transportation to children in need of special education. (603 CMR 28.800.0, 800.1, 800.3, 801.3, 802.1, 802.2, 802.4) They require that the TEAM state, as part of a student’s IEP, whether the child requires transportation in order to participate fully in all parts of the recommended program, and further, whether in order to so participate, the child can be transported on regular transportation vehicles or requires special transportation (including transportation outside the jurisdiction of the school committee). Furthermore, the regulations specify that each school committee must provide all transportation recommended by the TEAM, and that in no event may transportation considerations influence, modify or determine the educational program furnished to a child in need of special education.

It is established then that a school district must transport a student between home and school and, if applicable, to and from additional special education service providers/programs recommended by his IEP, be they within or outside the jurisdiction of the school committee. It is equally clear that there is no statutory or regulatory mandate, either state or federal, which would require a school district to transport a child with special needs between his special education program(s) and a day care center located outside town limits, which day care center does not purport to furnish special education services or appear as a special education provider on his IEP.

In asserting the contrary position, Parents’ reliance on Cedar Rapids Community School District v. Garret F. , 119 S.Ct. 992 (1999) is misplaced. There, the Court’s decision holding a school district responsible for providing a ventilator dependent student the related service of one to one nursing care, was predicated not only on the nature of the service but on the nature of his presenting disability. The Court reasoned that the student’s disability would preclude him from attending school absent provision of the supportive nursing services sought. Citing Irving Independent School District v. Tatro , 468 U.S. 883, 891 (1984), the Court noted that as a general matter, services which enable a disabled student to remain in school during the day provide the student with “the meaningful access to education that Congress envisioned.”

The facts presented by the instant case are clearly distinguishable from Cedar Rapids , supra . Here, there is no nexus between Student’s disability and the need for transportation to an out of district day care center; in fact, the special transportation which is dictated by his disability and necessary in order for him to fully participate in the integrated preschool program (i.e., daily transportation via mini-van between home and school) was properly determined through the TEAM process, and is specifically included in his IEP. Parents’ argument that without twice weekly transportation between school and day care center Student will be unable to fully participate in his preschool program (i.e., he will only be able to attend said program three days per week) is unpersuasive, as the transportation sought is not disability-driven, but rather premised on logistical issues faced by the family.

Certainly the law does not preclude school districts from voluntarily providing special needs students with transportation to non-special education sites outside town limits. However, as such service is not legally mandated, but rather discretionary, the policy decision with respect to this issue is administrative in nature. While the TEAM is charged with the responsibility for decision-making with respect to legally mandated special education and related services for children with special needs, there is no requirement that a TEAM be responsible for decision-making with respect to provision of services beyond those which are legally required. Parents’ argument that the IEP is procedurally defective because Ms. Dixson’s unilateral decision not to voluntarily provide Student out of district transportation to his day care center usurped a role delegated by law to the TEAM is, therefore, unpersuasive.

ORDER

Swampscott is not legally responsible for providing Student transportation from his preschool program to his day care provider located outside the town limits of Swampscott.

By the Hearing Officer,

Reece Erlichman

Dated: August 3, 1999


1

An Order issued on April 22, 1999. (App. I)


2

Ms. Stern defined the special transportation furnished as a mini-van with car seats .

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