STATE OF NEW HAMPSHIRE
DEPARTMENT OF EDUCATION
IDPH FY 04-08-24 /Hampstead School District
ORDER ON JOINT MOTION FOR SUMMARY JUDGMENT
I. INTRODUCTION
This matter arose via request by the Hampstead School District ("District") dated and submitted on August 27, 2003, relative to reimbursement for a unilateral placement made by Student's parents, Mr. and Mrs. [ ]. A prehearing conference was scheduled for September 8, 2003, and a due process hearing was scheduled for September 17 and October 1, 2003. The prehearing conference was held on September 8, 2003 at the Hearings Office at 57 Regional Drive in Concord, New Hampshire. In attendance were Winfried Feneberg, Special Education Director for the District; Attorney Gerald Zelin, counsel for the District; and [ ], Student's father. By agreement and with Hearing Officer approval, Attorney Richard O'Meara, who represents Student and student’s family, was available by teleconference. The parties submitted a Joint Motion for Summary Judgment supplemented by factual representations made by both parties on the record.
II. FACTS
The following facts are agreed upon by the parties, and are found by the Hearing Officer:
1. Student was born on _____.
2. Student has been diagnosed with autism.
3. The District has provided Student with special education since age 3.
4. Parents unilaterally placed Student at a Private School, the [ ] (“Private School”), for the 2003-2004 school year. This is a day program for disabled children located in [ ], Massachusetts, approximately 45 minutes from Student's home.
5. Private School is not approved as a special education school by the Massachusetts
Department of Education. Its application for program approval is pending.
6. For the 2002-2003 school year, Student attended the New England Center for Children (“NECC”) in Southborough, Massachusetts. NECC is no longer available as a placement for the 2003-2004 school year. During the spring and summer of 2003, the parties explored placing Student at the Birchtree Center (“Birchtree”) in Portsmouth, New Hampshire, a private day program for autistic students that first opened in the early spring of 2003. However, the parties agree that Birchtree is not appropriate for Student for the following reasons: a) as late as the summer of 2003, Birchtree could not accept Student until it received an occupancy permit for expanded quarters and could not predict when it would receive that permit; b) Birchtree would not commit to implementing Student's agreed-upon IEP. The parties have been unable to identify any other program that would be appropriate for Student. Between June 30, 2003 and August 18, 2003, Student did not attend any special education program, because the parties were awaiting an opening at Birchtree, which never materialized.
7. Several members of the school district's special education team visited Private School and concluded that it is an appropriate program for Student. Among other things, because of his distractibility, Student benefits from a learning environment which minimizes distractions; at Private School, student is in a classroom with one other student and a one-on-one aide. Furthermore, Student has been attending Private School since August 18, 2003, and moving ___ to another program at this date would be disruptive for Student who does not transition easily.
8. Private School is the only appropriate placement currently available for Student that can meet ___ unique educational needs. As the parties agree, Private School can provide Student with a free appropriate public education ("FAPE"), and can implement the goals and objectives in Student's IEP.
III. DISCUSSION
Summary judgment is appropriate if the pleadings and other documents on file "show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A fact is material when it affects the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Every educationally handicapped student such as Student is entitled to a FAPE, which is reasonably calculated to meet __ unique needs. E.g., Board of Education of Hendrick Hudson Central School District v. Rowley, 458 U.S. 176 (1982). When a FAPE has not been made available by the local educational agency and a parental placement is subsequently determined to be appropriate, the parent may be reimbursed for expenditures relative to the private placement. School Committee of Burlington v.
Department of Education of Massachusetts, 471 U.S. 359 (1985). A hearing officer may find that a parental placement is appropriate and order reimbursement, even when the parental placement does not meet the state standards governing placements by the local educational agency. Florence County School District Four, et. at. v. Carter, 510 U.S. 7 (1993).
Student's unique educational needs and the appropriate placement to meet those needs are factual issues which clearly affect the outcome of this case, and are thus material. As the undisputed facts demonstrate, the team has determined that Private School can implement Student's IEP in a way that is reasonably calculated to enable ___ to make educational progress. Except for Private School, where Student was unilaterally placed by ___ parents, there was no other appropriate placement alternative. N.H. Code of Administrative Rules Ed 1129.03 bars the District from placing Student at Private School until Private School receives program approval from the Massachusetts
Department of Education. However, as noted above, the Individuals with Disabilities
Education Act ("IDEA") allows a parent to seek reimbursement for a unilateral placement at an unapproved school in circumstances like this, when there is no appropriate approved program. Florence County School District Four et. al. v. Carter, supra. The New Hampshire Board of Education's regulations echo Carter by allowing a school district to obtain catastrophic aid from the State under RSA 186-C:18 whenever a hearing officer orders the district to reimburse parents for a unilateral placement. Ed 1132.02(b)(2). Although Private School is not yet been approved by the host state as a special education school, it is nonetheless appropriate to meet Student's unique needs. Moreover, under the circumstances as delineated above, Student could not have received a FAPE had __ parents not placed ___ unilaterally. Since there is agreement as to those issues, it is proper to conclude that there is no genuine issue of material fact, and that summary judgment should be awarded as a matter of law. E.g., Student/Bedford School District, N.H. Dept. of Education, IDPH FY 03-18-13 ( November 15, 2002).
IV. ORDERS
In accordance with the above, the following is ordered:
A. The District shall reimburse Parents for tuition at Private School for the period September 3, 2003 forward, at a rate not to exceed $318.13 (three hundred eighteen dollars and thirteen cents) per day, not to exceed five days per week, 221 days per calendar year, in addition to transportation at a rate of $42.50 per day for each day Student attends Private School.
B. Such reimbursement shall continue until whichever of the following occurs first:
1) September 1, 2004 (without prejudice to whether Private School is the stay-put placement pending any parent appeal);
2) Private School receives temporary, conditional, or full program approval from the Massachusetts Department of Education as a special education program for disabled students, causing the New Hampshire Department of Education to treat Private School as a state-approved special education program under N.H. Code of Administrative Rules Ed 1129.
3) Sixty (60) days after the school district through the team meeting process decides that Private School is no longer appropriate or offers placement at a state-approved program (without prejudice to whether Private School is the stay-put placement pending any parent appeal from such decision).
C. If Private School demands a security deposit, the District shall reimburse Parents for that security deposit, not to exceed $6,680.73 (six thousand six hundred eighty dollars and seventy-three cents). The proceeds of that security deposit shall be returned to the District upon Private School releasing that security deposit.
D. Tuition, transportation and security deposit for which the District reimburses Parents shall not be treated as taxable income for Federal income tax purposes, unless the Federal government demands such treatment.
V. APPEAL RIGHTS
If either party is aggrieved by the decision of the Hearing Officer set forth above, either party may appeal this decision to the court of appropriate jurisdiction. The parents have the right to obtain a transcription of the proceedings from the Department of Education. The District shall notify the office of legislation and hearings if either the District or the parents seek judicial review of the decision.
VI. STATEMENT OF COMPLIANCE WITH Ed 1128.22(b)
If neither party appeals this decision to a court, then the District shall, within 90 days, provide to the office of legislation and hearings and to the Hearing Officer, a written report describing the implementation of this decision, and provide a copy to the parents. If the parents do not concur with the District's report, the parents shall submit their own report to the office of legislation and hearings.
So ordered.
Date: September 8, 2003
Amy B. Davidson, Hearing Officer
[2] See Due Process Hearing Schedule
dated August 29, 2003
(File Exhibit 3). [3] File Exhibit 4