The Individuals with Disabilities Education Act (“IDEA”) requires that an eligible child receive a free appropriate public education (“FAPE”) in the least restrictive environment (“LRE”) (20 U.S.C. § 1401(9); 20 U.S.C. § 1406(2)). Although special education includes a wide spectrum of available services, ranging from minor adjustments in the child’s mainstreamed class to a complete residential placement, the goal of special education is to keep the child as mainstreamed as possible. An out-of-district residential placement is considered more restrictive than an out-of-district day placement, which in turn is considered more restrictive than a public school placement with pullouts for various services, which in turn is considered more restrictive than a public school placement in the general education classroom.
However, this all depends on the needs of the child. If the Team agrees that a student needs special education services, can a non-special education school suffice? This was the issue decided very recently by the Massachusetts Bureau of Special Education Appeals (“BSEA”) in the case of In re: Curt and West Boylston Public Schools – BSEA # 15-08235.
In this case, the student, who was diagnosed with a Language Based Learning Disabiity (“LBLD”), attended the Carroll School through the ninth grade, which is the highest grade available at Carroll. The Team agreed that Landmark School, which is another school that specializes in LBLD, would be appropriate for Curt for high school. However, attending Landmark would have meant a commute of over one hour from West Boylston.
Curt’s parents pointed to 603 CMR 28.06(8)(a), which guides Teams against commutes of over an hour. This regulation states, “The district shall not permit any eligible student to be transported in a manner that requires the student to remain in the vehicle for more than one hour each way except with the approval of the Team. The Team shall document such determination on the IEP.” To avoid this commuting problem, the school district even offered to pay for a residential placement.
Parents were not thrilled with either a long commute OR a residential placement at Landmark, so they requested a placement at school district expense at one of two private general education schools: The Winchendon School or Chapel Hill – Chauncy Hall. When West Boylston refused both placements, parents made a unilateral placement of Curt at the Winchendon School, and then filed a hearing request with the BSEA.
The Hearing Officer, Ray Oliver, found in favor of the school district. His reasoning was that if the Team agreed that Curt required a special education placement, a general education placement would not be appropriate. It would not provide the student with the services that he needed. Therefore, between the choices of a distant special education school or a nearby general education school, the distant special education school would be where the student could get his FAPE in the LRE. The Hearing Officer also stated that the regulation regarding commuting time “is not an absolute bar to transporting a student more than one hour each way but rather allows a waiver of such time limit by the Team.” Although a residential placement would be more restrictive than a day placement, it would at least allow the required IEP services to be implemented, whereas that would not be possible at a regular education school.
The Law Office of James M. Baron represents students and parents in special education and other school-related legal matters throughout Massachusetts and New Hampshire. Please visit http://www.lawbaron.com, or call 781-209-1166 for more information.
A statute of limitations defines how long you have to bring a legal action. With special education matters, if you are going to file for a due process hearing, the general rule is that you have 2 years to file for a hearing regarding any alleged violation. 20 U.S.C. § 1415(b)(6)(B). If you make a unilateral placement (i.e. make a “unilateral” decision to enroll your child in a private school without school district approval), NH has significantly limited the time period that is allowed for filing for a hearing related to that placement. In particular, New Hampshire allows just 90 days for filing for a hearing regarding the unilateral placement. RSA 186-C:16-b. The 90 days runs from the date the unilateral placement is made. Further complicating this is that the date of the unilateral placement is not always clearcut. For example, is it:
- The date that the parents applied to the private school?
- The date that the private school accepted the student?
- The date that the parents returned the acceptance letter to the private school?
- The date that the parents sent in their first deposit to the private school?
- The date that payment was made in full?
- The date that the parents notified the public school district that they were withdrawing their child from the public school, and enrolling him or her at the private school?
Parents might have a bit of a reprieve from the 90 day burden if the school district did not provide the parents with notice of their special education rights, which they usually do at least annually. If notice was not given, then the 90 days would not start running until proper notice is given to the parents.
The exact wording of the NH law is:
186-C:16-b Due Process Hearing; Appeal. –I. Any action against a local school district seeking to enforce special education rights under state or federal law shall be commenced by requesting an administrative due process hearing from the department of education within 2 years of the date on which the alleged violation was or reasonably should have been discovered.
II. Notwithstanding the provisions of paragraph I, any action against a local school district to recover the costs of a unilateral special education placement shall be commenced by requesting an administrative due process hearing from the department of education within 90 days of the unilateral placement.
III. Where the parent, legal guardian or surrogate parent has not been given proper written notice of special education rights pursuant to 20 U.S.C. section 1415(d), including notice of the time limitations established in this section, such limitations shall run from the time notice of those rights is properly given. The department of education shall make available a model notice of rights which school districts may use as one means of complying with this paragraph.