Overview

Commentary on Massachusetts Special Education Decisions: 4th Quarter 2019, by Daniel T.S. Heffernan:

May 13, 2020

INTRODUCTION

The importance of well qualified experts with thorough and reasonable positions again comes to the fore in several of this quarter’s decisions. Nashoba Regional School District, BSEA #1909691, 25 MSER 244 (Putney‑Yaceshyn, 2019), illustrates this well. The parents had a longstanding expert who had gathered wide ranging and current information on the student, supporting parents’ claim. In addition, the decision showed that the lack of robust progress in the private placement is not fatal to the parents’ claim for continued placement there. In contrast, the fact that the student in Bourne Public Schools, BSEA #2000039, 25 MSER 268 (Figueroa 2019) struggled mightily in the residential component of a private placement undercut the claim for day placement there as well as the credibility of the parents’ expert who opined that the student needed to be placed residentially there. The case also involved the juxtaposition of the usual scenario where Bourne had more appropriate peers for the student than the private placement. Without an expert supported link between IEP goals and an extracurricular, the parents’ push for transportation to accommodate that extracurricular was denied in in Ipswich Public Schools and Soleil, BSEA #1906526, 25 MSER 227 (2019 Lindsay Byrne). In addition, the lack of credibility and forthrightness of the parent were the determining factors in Newton Public Schools, BSEA #190771, 25 MSER 222 (Putney‑Yaceshyn 2019), where a potentially valid claim for residency went down in flames after the parent’s evasive and contradictory testimony. The shell of an IEP, offered as the hearing was beginning, mooted the parents’ claim for prospective placement resulted in a dismissal of that claim in Nashoba Regional School District and Nalini, BSEA #1906261, 25 MSER 236 (Lindsay Byrne, 2019). The well‑established two‑year statute of limitations for IDEA claims and the requirement to first bring those claims to the BSEA instead of state or federal court was reaffirmed in Manchester‑Essex Regional School District, BSEA #2003498, 25 MSER 238 (Figueroa 2019). The hearing officer in Shrewsbury Public Schools and Lowen, BSEA #1910123, 25 MSER 255 (Reichbach 2019) took on the great effort to detail the services that were not provided by the district and after totaling them, ordered the school district to come up with a reasonable and useful way to compensate for them. Lastly, In Re: Kipp Academy, Lynn Public Schools, the Department of Elementary and Secondary Education and Sergio, BSEA #2003363, 25 MSER 292 (Reichbach 2019) gives an overview of the rights and responsibilities of the various parties involved in the placement of a student in a “program school.”

FISCAL YEAR 2019 BSEA STATISTICS

Before commenting on this quarter’s decisions, we offer an overview of the BSEA statistics for Fiscal Year 2019, relying in part on BSEA Director Reece Erlichman’s interesting insights into not only the invaluable work of the BSEA, but also into some trends regarding the subject matter of special education disputes in the Commonwealth.

As sure a thing as any, the number of rejected IEPs has again increased.

FY19 ‑ 11,979

FY18 ‑ 11,900

FY17 ‑ 11,400

FY16 ‑ 10,800

The number of hearing requests has remained relatively stable over the last few years, with the exception of a significant spike in FY16.

FY19 ‑ 483

FY18 ‑ 481

FY17 ‑ 495

FY16 ‑ 568

FY15 ‑ 492

Matters going through full hearings resulting in written decisions were consistently around 50 per year until they declined significantly after FY13. FY18 yielded the lowest number of full hearings (13) since the early days of the BSEA. The consensus is this was attributable to two factors. First, and most significantly, is the number of matters going to settlement conferences and the effectiveness of Reece Erlichman in getting those matters resolved. Settlement conferences were held in 76 of the cases that were filed for hearing in FY 2019 (as compared to 78 in FY 2018 cases), of which 67 were settled. The other factor was the use of pre‑trial motions to resolve matters completely or position them for resolution. FY19 saw 19 matters going to full hearings, which is consistent with recent trends.

FY19 ‑ 19

FY18 ‑ 13

FY17 ‑ 22

FY16 ‑ 23

FY15 ‑ 18

FY14 ‑ 25

FY13 ‑ 52

Of the 19 decisions noted above, parents fully prevailed in three. The parents were represented by counsel in two of those cases and appeared pro se in one; the school district was represented by counsel in all three matters. School districts fully prevailed in 13 of the 19 hearings. The parents were represented by counsel in six matters, and appeared pro se in seven; the school district was represented by counsel in all 13 matters. Mixed relief was granted in one matter, with the parent pro se and the district represented by counsel. In the two LEA assignment matters, both districts involved were represented by counsel.

The BSEA conducted 114 facilitated IEP Team meetings, a decrease from the 142 conducted during the previous year. (Note that the BSEA had to decline 29 requests for facilitated IEP Team meetings this year owing to staff unavailability.)

There were 714 mediations conducted in FY 2019 (representing an increase from the 699 conducted during the prior year), with an agreement rate of 83%. The number of mediations and the agreement rate has been consistent for several years.

Since BSEA filings are confidential, the only publicly accessible information about those is what can be gleaned from the written decisions about a relatively small number of them. Reece Erlichman has provided insight into some of the trends reflective in the bulk of the filings. There was an increase in filings relating to program schools (METCO, vocational schools, school choice, and charter schools) with respect to the procedural and substantive responsibilities of district of residence. There were also filings involving divorced parents who disagreed about the acceptance of the IEP. DESE’s stricter rules regarding the use of public funds for non‑approved schools also yielded some hearing requests.

A full review of the BSEA statistics from the past 10 years can be found at https://www.mass.gov/bsea‑statistics.

The BSEA issued three standing orders in 2019. These accord standing to file hearing requests with the BSEA to private schools and agencies that receive public funding to provide special education services, detail the requirements for filing a request to join a state agency or other party to a BSEA proceeding, and detail rules for communicating with BSEA. The full standing orders can be viewed at https://www.mass.gov/service‑details/bureau‑of‑special‑education‑appeals‑standing‑orders.

We take this opportunity to thank Marc Sevigny for his many years of service as the coordinator of mediations. He has done a remarkable job and served the school districts and families throughout the state exceptionally well. The selection of Myrto Flessas as Marc’s successor is widely hailed as a superb choice, and we welcome her to the position.

ONE PARENT MOVING IN FROM OUT OF STATE UNABLE TO HAVE A MASSACHUSETTS SCHOOL DISTRICT FUND THE MASSACHUSETTS RESIDENTIAL SCHOOL

The parents in Newton Public Schools, BSEA #190771, 25 MSER 222 (Putney‑Yaceshyn 2019)[1], had lived in Milford Connecticut since September 1995. Their daughter was 17 years old at the time of the hearing in March 2019 and lived full time with her parents in Milford from the time she was adopted in August 2003 until July 2018 when she was unilaterally placed as a residential student at the Chamberlain School in Middleborough, Massachusetts. Prior to that, she attended the Milford, Connecticut public schools from kindergarten through her freshman year in high school. In July 2018, the parents and a Milford Public Schools’ administrator met and revised student’s recommended placement from an in‑district one to an approved residential therapeutic school for the 2018‑2019 school year. Parents and Milford entered into a confidential settlement agreement, the terms of which the father was prohibited from disclosing.

The issue addressed in Newton’s summary judgment motion was whether Newton had responsibility to fund the student’s placement at Chamberlain after the student’s father purportedly moved to Newton from Milford. The hearing officer found for Newton because she did not find the parent’s claim that he had established residency in Newton to be credible.

The father had worked for a Massachusetts software company since April 2010 that was based in Waltham at the time of the hearing. For many years, the father commuted and stayed in a hotel near his office 30 to 50 percent of the time. After his employer purportedly began pressuring him to work full time in the Waltham office, the father signed a lease for a property in Newton for the term August 1, 2018 through August 31, 2019.

Prior to this and other actions, the father had researched “what constitutes state residency” before embarking on his effort to establish residency in Massachusetts. Regarding his Massachusetts residence, the father was actually renting a room. The landlord veered from his practice of no leases and only short‑term rentals to giving a 12‑month lease only because the father insisted on it. The father would pay an additional $50 a night when his daughter would spend the night, but in the 10 months since the inception of the lease, the father paid a total of $500. The student did not participate in any activities or join any groups in Newton and in fact spent little time in Newton even when staying overnight there. The mother had never stayed in the Newton house. The father had stated to Newton that his wife would stay in Connecticut because of health issues (which were never detailed) and Newton would be his daughter’s primary residence when not at Chamberlain because his wife could not care for her. However, at the time of the hearing, the father testified that his daughter had stayed with his wife in Connecticut all of the previous week. There was no custody agreement that stated the father had physical custody. When a Newton’s police officer visited the Newton house during a Chamberlain school break, he was shown the room where the student would stay. There were no clothes, pictures or any indication that a young female lived there. The landlords could not describe the student. The officer also examined the father’s room, which also lacked photos or personal items other than a laptop.

Regarding other indicia of residency, the father did obtain a Massachusetts driver’s license. He joined a Newton gym, but suspended his membership. He attended church in Newton, but had not joined a church and was still a member of a Connecticut church. His Facebook page listed Milford as his residence. He had ridden in the Pan‑Mass Challenge but an article about this in a Milford newspaper was titled “Milford Man to Ride in Pan‑Mass Challenge.” His doctors and dentist were still located in Connecticut. Even the student’s therapy dog lived in Connecticut. The hearing officer found that very little had changed in the father’s living arrangement since his purported move to Massachusetts.

At a registration meeting with Newton in November 2018, Newton asked if there was any agreement with Milford outside the IEP. The father misrepresented that he did not know of any agreement. The hearing officer found the father’s testimony to be “extraordinarily lacking in credibility.” He was evasive and contradicted himself. For example, he testified that he could not remember May or July 2018 meetings with Milford and when shown documentation that he attended, he stated “I have no recollection of a lot of 2018.” The hearing officer even went to the point of explicitly finding the father pursued the action in bad faith.

This case is clearly a case underscoring the credo that the three most important things in trials/hearings are “credibility, credibility and credibility.”

TRANSPORTATION DENIED TO EXTRACURRICULAR WHEN THOSE ARE NOT NECESSARY TO PROVIDE FAPE

The student in Ipswich Public Schools and Soleil, BSEA #1906526, 25 MSER 227 (2019 Lindsay Byrne) was a 17‑year‑old high school senior. He was diagnosed with ASD and ADHD. After being harassed by other students during his freshman year at Ipswich High School, he was transferred to Masconomet Regional High School with Ipswich funding his placement and providing transportation. He did well at Masconomet, both academically and socially. He was a member of Masconomet’s football team. Practices and games did not occur at predictable times during the season, and off‑season conditioning programs, which were not required but understood to increase one’s chance of being on the team, occurred between 6:00 a.m. and 7 a.m. Ipswich offered transportation at the beginning and end of the standard school day and it was very difficult for the parents to provide transportation to accommodate the football team schedule. The parents based their push for this transportation on the reasoning that sports were an integral part of the student’s high school experience and he was attending Masconomet High School because of Ipswich’s inability to provide FAPE at Ipswich High School.

The hearing officer found that the failure to provide accommodating transportation did not deny the student FAPE. There was no credible expert support for the proposition that participation in sports was necessary for the student to meaningfully progress towards his IEP goals other than brief letters from the student’s PCP and pharmacist supporting the general proposition that sports were good for the student. He did not require other accommodations such as equipment modification or supervision to participate on the football team or specialized transportation otherwise. The hearing officer noted that families of non‑disabled football team members had to deal with the burden of early morning and unpredictable practice and game schedules. Therefore, hearing officer failed to order Ipswich to provide transportation for this extracurricular.

To obtain the transportation, the family needed to garner stronger expert support connecting the sports to the student’s IEP goals. Such a case could be made if it were shown that participation in the extracurricular sports were important in achieving social emotional goals. While the parents lacked this expert support, we believe the hearing officer gave short shrift to the claims for transportation. The non‑disabled teammates all presumably lived closer to Masconomet High School and therefore the transportation burden was obviously more significant for this student with special needs. His inability to be on a team at his local high school was not due to a choice he made but solely because Ipswich could not provide him FAPE at Ipswich High School.

THE DISTRICT’S OFFER, AT THE BEGINNING OF THE HEARING, OF A SHELL OF AN IEP OFFERING THE PROSPECTIVE PLACEMENT SOUGHT BY THE PARENTS, MOOTS THE PROSPECTIVE PLACEMENT ISSUE

In Nashoba Regional School District and Nalini, BSEA #1906261, 25 MSER 236 (Lindsay Byrne, 2019)[2], the parents had long sought district funding of a residential therapeutic school for the student. They placed their daughter unilaterally at a therapeutic program, Asheville Academy for Girls, in North Carolina in March 2017 until her discharge in May 2018. The student then entered a Nashoba‑funded therapeutic day school, Summit Academy, but lasted only six days there and was eventually hospitalized. DMH offered to place her in a short‑term assistance and rapid re‑integration program (“STARR”) that would be connected to a day school, at which Nashoba was offering an extended evaluation. She entered the STARR program but was unable to attend a single day at the therapeutic day school next door. The parents filed a hearing request seeking reimbursement for the Asheville placement and (on an expedited basis) immediate placement in a residential therapeutic program. Nashoba successfully moved to have DMH joined to the action. At a pre‑hearing, the parties agreed to bifurcate the proceedings and scheduled the prospective placement portion of the case for a hearing shortly thereafter. The three parties subsequently agreed to interim residential placement at Dr. Franklin Perkins School and postponed the hearing. During the course of this postponement, Nashoba and the parents resolved the reimbursement claim and the interim agreement for the student’s residential placement at Perkins was extended until the hearing officer’s decision on the matter.

When all the parties were assembled to begin the hearing, the hearing officer asked to conference with the parties’ attorneys. After that conference, Nashoba offered to fully fund a placement in a residential therapeutic school. The following day, the district issued a bare bones IEP, with a placement “TBD” and listing the IEP meeting date as the first day of the hearing, when in fact no such meeting had been held. DMH was then dismissed as a party. Nashoba moved to dismiss the parents’ prospective claims as moot. The parents opposed this motion to dismiss, arguing that the purported IEP was inadequate because it did not emanate from a team meeting or contain numerous basic components of an IEP. Instead, the parents sought the entry of an order for prospective placement, which would support their claim for attorney’s fees. The hearing officer allowed the motion to dismiss, noting that if the matter proceeded to hearing and the parents fully prevailed on the prospective placement issue, her order would have been for the issuance of the bare bones IEP that had been provided to the parents.

SPECIAL ED BASED CLAIMS MUST BE FIRST BROUGHT IN THE BSEA AND A FILING IN FEDERAL COURT DOES NOT TOLL THE STATUTE OF LIMITATIONS

The hearing request in Manchester‑Essex Regional School District, BSEA #2003498, 25 MSER 238 (Figueroa 2019) was filed by the parents on September 30, 2019. The then 16‑year‑old student was a resident of Gloucester at the time of the filing and the claims involved incidents which allegedly occurred prior to December 2016 while the student was attending Manchester‑Essex schools. The gravamen of the hearing request involved denials of eligibility and exclusion from school programs, all of which purportedly led to the student’s school refusal, isolation and serious psychological harm. On December 3, 2018, the parents filed suit in federal district court for the District of Massachusetts. That case was dismissed because the parents failed to exhaust their administrative remedies at the BSEA. Shortly after that dismissal, in September 2019, the parents filed their hearing request. Manchester‑Essex moved to dismiss on the ground that the student’s claims were barred by the applicable statute of limitations. The parents argued unsuccessfully that the well‑established two‑year statute of limitations for IDEA and Section 504 based claims were tolled for three reasons. The first was that the filing of an “associate case,” i.e., the federal court action, tolled the statute of limitations. The hearing officer rejected this, also noting that many if not all of the claims would still be time barred at the time of the federal court filing. The hearing officer also rejected the second argument that the statute of limitations was tolled until the student reached the age of majority. While MGL c. 260 does toll the statute of limitations for tort claims for minors or others under incapacity, there is no statutory tolling provision for IDEA and Section 504 claims. Lastly, the two statutorily articulated grounds for the tolling of the statute of limitations, where the parent was prevented from requesting a hearing because of the school district’s misrepresentations, or where the school district has withheld information that it was required to disclose, were not present in this matter. As such, the action was dismissed.

PARENTS PREVAIL IN OBTAINING FUNDING FOR A PRIVATE DAY PLACEMENT DESPITE THE POTENTIAL FOR LESS THAN ROBUST PROGRESS THERE

The student in Nashoba Regional School District, BSEA #1909691, 25 MSER 244 (Putney‑Yaceshyn, 2019), was twelve years old and had a complex profile with many academic, executive function, and social‑emotional needs in addition to his vulnerability to anxiety. His learning struggles took a significant toll on him emotionally. Pursuant to a settlement agreement the student was placed at Learning Prep School for the 2017‑2018 and 2018‑2019 school years, his fifth and sixth grade years. The parties did not extend the agreement. Nashoba offered placement in the Middle Connections Program at Hale Middle School. Parents unilaterally continued his placement at Learning Prep and ultimately filed for reimbursement and prospective placement.

The parents’ claims were supported by a neuropsychologist, Mary Coakley‑Welch, who had conducted multiple evaluations and observations of the student throughout the years. The hearing officer found her to be a “very credible witness” because in addition to her own testing, she reviewed records from his time in the Nashoba schools as well as Learning Prep, conducted a parent interview, solicited wide ranging input from his teachers about the student’s strengths and weaknesses. Her test results were very similar to Nashoba’s and Nashoba did not contest her results. Particularly compelling was the agreement that the student had a great deal of difficulty maintaining attention across settings. This called into serious doubt whether the student could succeed in the Middle Connections program, where science and social studies would be taught in the general education setting with two dozen students. He simply could not keep up with the pace of instruction given his significant and well‑documented language and working memory deficits.

When a student’s progress in a private placement is less than robust, school districts often seek to undercut the case for continued placement there with an argument of “let the student come back to the district and we can do as poor a job with them as the private school.” Here, Nashoba argued that the student had not made sufficient progress at Learning Prep to warrant continued placement there. While not finding that the student had not made insufficient progress at Learning Prep, the hearing officer, citing Rafferty v.Cranston Public School Committee, 315 F.3d 21 (1st Cir. 2002), held that the proper focus was the appropriateness of services provided in light of the recommendations of the educational experts. Given the credit accorded to the parents’ expert about the need for the small class, specialized programming that Learning Prep has and would provide, the hearing officer ordered reimbursement and prospective placement there.

THE HEARING OFFICER PAINSTAKINGLY ANALYZES WHAT SERVICES WERE NOT PROVIDED AND ORDERS THE DISTRICT TO DEVELOP A SENSIBLE COMPENSATORY PLAN

The parents in Shrewsbury Public Schools and Lowen, BSEA #1910123, 25 MSER 255 (Reichbach 2019) claimed in their hearing request that the student was denied FAPE because the district failed to align his school work with his IEP and failed to provide direct instruction and certain services called for in his accepted IEP. In addition, they alleged that they were deprived of the opportunity to fully participate in his education because of misrepresentations about the student’s programming. The pro se parents had no expert witnesses testifying on their behalf.

The 17‑year‑old student was a resident of Shrewsbury had significant impairments in cognition, expressive and receptive language, behavioral regulation, and social interaction. In December 2016, DCF assumed custody of the student. The last accepted IEP was the 2017‑2018 IEP, which had been accepted by the student’s GAL. That IEP provided for 90 minutes of speech/language services per seven‑day cycle. Because parents did not accept any IEP after the 2017‑2018 one, under stay‑put, the student was entitled to this continued level of services. The hearing officer did a painstaking analysis to calculate of what speech language services were not provided during those IEP periods and ordered the school district to propose a way to provide practical, beneficial compensatory services. In addition, the hearing officer held that this service could not be eliminated without evaluations of the student’s current performance. Towards that end, the hearing officer ordered the district to conduct these evaluations, with or without the parents’ consent.

The parents failed to establish that any procedural failings by Shrewsbury negatively impacted FAPE for the student. Concerning the parents’ claim for home services, the hearing officer ordered the district to promptly conduct a home assessment and see what services are called for. The hearing officer noted that if parents refused to consent to a home evaluation, the district would be relieved of any obligation to provide services.

THE PARENTS’ CLAIM FOR REIMBURSEMENT DENIED WHERE THE STUDENT HAD MORE APPROPRIATE PEERS IN THE PUBLIC SCHOOL PLACEMENT

The student in Bourne Public Schools, BSEA #2000039, 25 MSER 268 (Figueroa 2019) was a 13‑year‑old with significant learning, developmental, and emotional issues who had spent the past 2.5 years unilaterally placed at Riverview School. The hearing officer denied the parents’ claim for reimbursement and prospective placement.

The student had been attending an inclusion program in Plymouth through her fourth grade (2016‑2017) year. The parents conceded that the student made progress in that program, but maintained that the student had difficulties outside school participating in activities and connecting to other peers. A major concern for the parents was that the student needed social skills development through both instruction and practice. For fifth grade, Bourne proposed placement in a program that would offer the opportunity for the student to move from its substantially separate to partial inclusion program. Parents unilaterally placed the student as a day student at Riverview for the 2017‑2018 school year.

There were several problems with the Riverview placement. While oftentimes the strength of a unilateral placement lies in its larger number of similarly situated peers than can be found in the public school program, this was not the case with Riverview for this student. Riverview did not have an elementary school program, so the student was placed in sixth grade. Not only were there no fifth graders in her program at Riverview, there was only one sixth grader. The total enrollment at Riverview was 100 students, with only 10 in the middle school. Consequently, the student, was often in class with high school students. The district engaged an outside neuropsychologist, Dr. Karen Postal, to test and observe the student. For decades, Dr. Postal had conducted many evaluations on behalf of families and school districts. While complimenting the Riverview staff’s skill and dedication, she opined that the lack of age appropriate peers at Riverview would make it difficult for the student to practice and develop appropriate social pragmatic skills. The district claimed that their observation of the student in the Riverview program showed that that she appeared younger and less mature than her peers. In contrast, the Bourne middle school program was populated with middle school students with an advantageous opportunity for interaction with typical students. Dr. Postal further buttressed her credibility by criticizing portions of Bourne’s program, but offering suggestions adopted by Bourne to more appropriately meet the student’s needs.

Parents’ experts from the Integrated Center for Child Development (ICCD) found the student’s social skills to be significantly below age expectations. That made placement with older peers at Riverview more inappropriate. ICCD’s Rafael Castro stated that he believed that because of cognitive deficits of the Riverview students, their abilities were similar to the student’s. This added to the sense that the student was being “shoe horned” into the Riverview program.

From a tactical perspective, a student’s claim for outside placement is almost always strengthened by a unilateral placement when it yields a track record of success. Here, the opposite was true. The student began the 2018‑2019 school year as a residential student consistent with the recommendation of Dr. Castro that the student, in order to sufficiently develop her social skills and independence, required a residential placement. However, the student experienced meltdowns, had difficulty with peer interactions, and was stealing. By the end of October/beginning of November 2018, Riverview terminated the student from the residential program and told the family the student would not be considered a candidate for residential placement until the 2020‑2021 school year. While the parents did not pursue reimbursement for the residential placement, her swift and dramatic failure in the residential program underscored the mismatch of the peers at Riverview and also undercut the credibility of the parents’ expert who said she required residential placement there.

Bourne’s reasonableness was further demonstrated by the modifications it made to the IEPs offered to the student, its flexible approach to her programming as well as its offer to conduct an extended evaluation of the student should she return to the Bourne schools. While Bourne’s proposed placement, in particular science and social studies classes from September 2018 to February 2019, may have been inappropriate, the parents were not entitled to reimbursement.

Bourne took the opportunity to buttress their case for the appropriateness of what they were offering by observing the student during large, unstructured activities at Bourne High School in the fall of 2018, spring of 2019 and fall of 2019. During these three occasions, the student appeared unbothered by the crowds or large noises, participated appropriately in the activities, independently maneuvered throughout the settings. The hearing officer found this to be strong evidence that the student was ready for more social challenges and inclusion than she could have at Riverview, despite the comfort and ease of that setting.

THE OBLIGATIONS OF THE VARIOUS ENTITIES INVOLVED WHEN A STUDENT IS PLACED IN A “PROGRAM SCHOOL”

In Re: Kipp Academy, Lynn Public Schools, the Department of Elementary and Secondary Education and Sergio, BSEA #2003363, 25 MSER 292 (Reichbach 2019) involves the complicated interplay between students, charter schools, and public school districts. The student involved was a fourth grader with an emotional disability and had been enrolled in KIPP Academy Lynn since kindergarten. KIPP is a Commonwealth Charter School. The essential issue involved in this decision on the motion for summary judgment is what are the options and obligations of a charter school once it determines that it cannot serve a student within its program and the student needs an out‑of‑district placement.

Pursuant to 603 CMR 28.10(6) a “program school” such as a charter school, shall have the programmatic and financial responsibility for enrolled students. When a team determines that the enrolled student may need an out‑of‑district a placement, the team shall suspend the meeting pursuant to 603 CMR. 28.06(e) without identifying a placement, and shall notify the school district of residence (SDOR) to participate in another meeting. The team is then directed to consider first whether a program within the SDOR could be appropriate. If not, they can propose an out‑of‑district placement and if the parent accepts that, the financial and programmatic responsibility returns to the SDOR.

DESE’s Technical Assistance Advisory SPED 2014‑5, entitled “Charter School Responsibilities for Students with Disabilities Who May Need an Out‑of‑District Program states that a specialized or substantially separate program operated within a school district building that serves students with and without disabilities is not considered an out‑of‑district program.

The student purportedly began struggling behaviorally in second grade and KIPP believed he needed a substantially separate therapeutic program (SSTP). Because KIPP did not have an SSTP before fifth grade, it reached out to Lynn, the student’s SDOR. Lynn did not respond. KIPP then consulted with DESE’s Charter Schools Office and Marblehead Public Schools and ultimately placed the student in Marblehead’s SSTP program, TIDES. The student successfully attended TIDES throughout the 2018‑2019 school year. In May 2019 DESE informed KIPP that as a charter school it was not permitted to contract for services with a public school other than the SDOR. DESE agreed to provide a waiver for the 2018‑2019 school year but informed KIPP that it would not provide one for the upcoming year. In June 2019 KIPP convened a team meeting with the family and Lynn’s new special education director and proposed an SSTP within Lynn Public Schools for the 2019‑2020 school year. Parents rejected and asserted stay‑put rights at TIDES. Marblehead said it could not enroll the student without a contract from KIPP and KIPP stated it could not execute one without the waiver from DESE. With the student sitting at home during the beginning of the 2019‑2020 school year, DESE relented and agreed to provide a waiver for the 2019‑2020 school year.

The hearing officer was not able to resolve these issues on summary judgment and denied DESE’s motion to be dismissed from the action but identified the following issues for a full hearing:

1. Whether KIPP placement of student at TIDES was proper because the regulations do not prohibit it from placing the student in a program in‑district but not in the student’s SDOR;

2. Whether DESE properly granted a waiver KIPP’s placement of the student at TIDES;

3. Whether that placement could continue absent a waiver;

4. Whether programmatic and financial responsibility transferred from KPPP to Lynn;

5. Who is responsible for compensating for the days the student missed at the beginning of the 2019‑2020 school year;

6. Whether the IEP proposed by Lynn placing student at a program within Lynn is appropriate; and,

7. Whether TIDES is the student’s stay put placement.

[1] The parents were represented by Joseph Green of Kotin, Crabtree & Strong.
[2] The parents were represented by Daniel T.S. Heffernan and Melanie R. Jarboe of Kotin, Crabtree & Strong.

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