STATE OF RHODE ISLAND
COMMISSIONER OF EDUCATION
C. DOE v. EAST PROVIDENCE SCHOOL DEPARTMENT
RIDE Case No. 18-055P
INTERIM ORDER
Held: Stay-put order is entered against school district requiring it to maintain child’s ESY placement pending resolution of due process complaint.
Introduction
This matter concerns a request for an interim protective order under R.I.G.L. 16-39-3.2 seeking a “stay-put” order with regard to Student Doe’s extended school year placement.[1]
Background
Student Doe is 15 years old and in the 9th grade. As an infant, he sustained traumatic brain injury inflicted by a daycare provider. He is non-verbal, has global developmental delay, uses a wheelchair for mobility and has a seizure disorder. Doe has had an individualized education program (“IEP”) since 2008, the year he began attending Meeting Street School. His IEP provided for extended school year services (“ESY”), which he received at Meeting Street during the summer.
In the fall of 2015, Doe began attending Martin Middle School in East Providence. In the spring of 2016, East Providence proposed changing Doe’s ESY program from Meeting Street to the district’s program at Martin Middle School. Doe’s parents challenged the proposed IEP and filed a request for a due process hearing. The dispute resulted in a settlement agreement by which Doe received ESY services at Meeting Street for the summer of 2016.
An annual IEP review meeting was held for Doe on March 2, 2017. The resulting IEP, date-stamped March 23, 2017 for receipt in the district’s Pupil Personnel Services office, provided the following ESY special education and related services from July 11 to August 10, 2017:
- individualized instruction in reading .3 hours per day 3 days per week
- individualized instruction in mathematics .3 hours per day 3 days per week
- physical therapy .5 hours per day 2 days per week
- speech and language services .5 hours per day 3 days per week
- occupational therapy .5 hours per week 2 days per week
- transportation 3 days per week[2] [School Department Exhibit 1]
On March 21, 2017, however, Doe’s mother sent an email to the East Providence director of Pupil Personnel Services asking him to “confirm that [Doe] will be attending Meeting Street School ESY from June 19 thru August 12, 2017, 8 a.m. to 1 p.m.” In his email response the same day, the director stated that “East Providence will support [Doe’s] ESY program continuing at Meeting Street for this summer.” [Petitioners’ Exhibit 3]. At the hearing, the director testified that
Doe attended Meeting Street for ESY services in the summer of 2017 because of a construction project at Martin Middle School, the site of East Providence’s ESY program. The summer construction at Martin Middle School impeded Doe’s access to a bathroom. For that reason, the district arranged for Doe to receive ESY services at Meeting Street.
Doe’s parents did not challenge or seek to modify the 2017 proposed IEP. Doe’s mother testified that they did not do so because of Doe’s 2017 placement at Meeting Street and the prior settlement agreement.
As stated in Doe’s mother’s March 21, 2017 email, the 2017 ESY program at Meeting Street began about a week after Doe finished his school year in East Providence. Starting at 8:00 a.m., the program operated 5 hours a day, 5 days a week, for 8 weeks. Doe received academic instruction as well as speech/language services and physical and occupational therapy.
Another IEP was developed for Doe in January 2018. The IEP provides similar ESY services as those set forth in the 2017 IEP in a 3-hour program, 3 days a week, from July 11 to August 11, 2018. The program starts at 7:30 a.m.[3] The district again proposed that Doe receive ESY services at Martin Middle School. The director of Pupil Personnel Services testified that the academic component of the East Providence ESY program is specifically designed for Doe and that the related services meet his needs. The same staff would be working with Doe in the summer thereby providing continuity from the school year. He testified that the Meeting Street School ESY program is a “one-size-fits-all” program and operates as part of a 220-day school year program.
Disagreeing with the proposed ESY placement, Doe’s parents filed a due process complaint with regard to the 2018 IEP. Under 20 USC 1415(j) of the Individuals with Disabilities Education Act (“IDEA”) and §300.518(a) of the Rhode Island Regulations Governing the Education of Children with Disabilities, they seek a “stay-put” order herein requiring East Providence to maintain the Meeting Street School ESY placement for Doe pending the resolution of the due process case.
Positions of the Parties
Petitioners contend that, for stay-put purposes, the last agreed-upon ESY placement is Meeting Street School’s 8-week, 5-day-per-week ESY program. Doe’s parents never agreed to ESY services of less than that provided in Meeting Street’s program, which is the placement that East Providence funded and Doe attended in 2017. East Providence did not place any limitation on Doe’s attendance at the 2017 Meeting Street ESY program. Furthermore, the East Providence and Meeting Street programs differ in important respects (number of service days, start date) which are critical in avoiding regression of educational skills.
East Providence argues that a stay-put placement relates to a level of services, not a location. The student’s IEP, which describes the required services, governs the determination of the last agreed-upon placement. In this case, that is the 2017 IEP which Doe’s parents did not contest. Doe’s receipt of ESY services last year at Meeting Street in excess of what was called for in his IEP is irrelevant. The Martin Middle School ESY program can provide Doe with appropriate services, and the physical change in the location in which Doe is to receive his ESY services this summer does not amount to a change in “educational placement” requiring stay-put protection.
Discussion
Rhode Island General Law 16-39-3.2, entitled “Interim Protective Order,” states in part that
In all cases concerning children, other than cases arising solely under §16-2-17,[4] the commissioner of elementary and secondary education shall also have power to issue any interim orders pending a hearing as may be needed to ensure that a child receives education in accordance with applicable state and federal laws and regulations during the pendency of the matter. Section 300.518(a) of the Rhode Island Regulations Governing the Education of Children with Disabilities states that
... during the pendency of any administrative or judicial proceeding regarding a due process complaint notice requesting a due process hearing under §300.507, unless the State or local agency and the parents of the child agree otherwise, the child involved in the complaint must remain in his or her current educational placement.
In defining “current educational placement,” U.S. Circuit Courts of Appeals have stated that
Because the term connotes preservation of the status quo, it refers to the operative placement actually functioning at the time the dispute first arises. If an IEP has been implemented, then that program's placement will be the one subject to the stayput provision. And where... the dispute arises before any IEP has been implemented, the 'current educational placement' will be the operative placement under which the child is actually receiving instruction at the time the dispute arises.[5] In E. Doe v. West Warwick School Department, we stated that an “educational placement” under IDEA is not a place or location, but a program of services from which the child can obtain some educational benefit. [footnote omitted]. See Lunceford v. District of Columbia Board of Education, 745 F.2d 1577 (D.C. Cir. 1984). In that case, a change in a feeding schedule that would occur with transfer of a severely disabled young adult from a private hospital to a public institution was held to be insufficient to constitute a change in educational placement. We quoted from the Lunceford decision in the 1996 stay-put interim-order case of In the Matter of Jane A.P. Doe,[6] stating that “a party ‘must identify, at a minimum, a fundamental change in, or elimination of a basic element of, the education program in order for the change to qualify as a change in educational placement.’”[7]
We find that the Meeting Street School program is the operative placement under which Doe was actually receiving ESY services at the time the dispute in the due process case arose. Despite a prior disagreement over ESY services, East Providence provided Doe with the Meeting Street program in the summer of 2017 without qualifying or limiting Doe’s participation in any way. The decision to do so occurred simultaneously with the development of Doe’s March 2017 IEP. It also continued without interruption the pattern of sending Doe to the Meeting Street ESY program. Heading into the summer of 2018, Meeting Street was the functioning ESY placement for Doe. Furthermore, we are not persuaded on the basis of the record in this case that the Martin Middle School ESY program represents a mere change in location for Doe’s ESY services. The respective starting dates, beginning times, durations and amounts of academic instruction raise significant questions about the comparison of the programs. These questions are best addressed in the due process hearing that has been requested by Petitioners.
Conclusion
Based on the foregoing, the East Providence School Department is hereby ordered pursuant to §16-39-3.2 to maintain Doe’s placement in the Meeting Street School ESY program pending the resolution of the due process hearing requested by Petitioners.
Footnotes
[1] A hearing was held in this case on June 8, 2018.
[2] The IEP notes that Doe “will arrive up to one hour late each day due to medical reasons.” Doe’s mother testified that Doe is not functional early in the morning because of the medication he takes for his seizure disorder. He usually arrives at school between 8:00 and 8:30 in the morning.
[3] The IEP again notes that Doe “will arrive up to one hour late each day due to medical reasons.” [School Department Exhibit 2].
[4] R.I.G.L. 16-2-17 concerns student discipline for violation of school regulations.
[5] Thomas v. Cincinnati Board of Education, 918 F.2d 618, 625-26 (6th Cir. 1990), quoting Drinker v. Colonial School District, 78 F.3d 859, 867 (3rd Cir. 1996).
[6] Commissioner’s Decision 0026-96, p. 4, November 14, 1996.
[7] Commissioner’s Decision 011-15, p. 4, September 11, 2015.
Paul E. Pontarelli
Hearing Officer
Approved:
Ken Wagner, Ph.D.
Commissioner of Education
Date: June 14, 2018