The result was an order for the district to provide compensatory services in the form of “two additional years of transition services and services for older Students” to make the Student whole for the district’s failures. The Hearing Officer ordered continuing eligibility for special-education services for those years and also found that, under the circumstances, continuing services and eligibility could be provided even if the Student accepted his diploma. (Though the Hearing Officer found no explicit judicial precedent for extending special-education eligibility beyond graduation as part of a compensatory-service remedy, there was ample precedent to support the exercise of broad discretion in fashioning remedies for breaches under IDEA.)

This case lifts to prominence the independent special-education rights that surround IDEA’s transitional-service provisions. A casual or pro forma filling out of the transitional-planning forms at Team meetings beginning at age 14 will not do, and a failure to identify, measure, and address the critical skills a student will need, in addition to the classic academic skills, in order to make effective use of his or her earlier education places a district at risk for continuing obligations toward the affected Student.

For practitioners, Dracut may serve as a model of effective case-building. The independent experts who assessed the Student, advocated for their recommendations with the Team, and testified at the hearing clearly had solid experience with and a deep understanding of the profile and needs of a student with Asperger’s Syndrome. The Disability Law Center, which represented this Student, clearly did an exceptional job of presenting the evidence and arguing the case.

Dracut affirms clear language in Massachusetts law to the effect that social/emotional development is an area that must be addressed in its own right in IEPs. See 603 CMR 28.02 (17), defining “Progress effectively in the general education program” as meaning “to make documented growth in the acquisition of knowledge and skills, including social/emotional development, within the general education program, with or without accommodations¼” (emphasis added). In addition, judicial interpretations of IDEA have supported a broad reading of the entitlement beyond strictly academic concerns. See, e.g., Lenn v. Portland School Committee, 998 F.2d 1083 (1st Cir. 1993), and Mr. I. v. Maine School Administrative District No. 55, 480 F. 3rd 1, 12 (1st Cir. 2007) (IDEA entitles eligible students to services that target “all of a child’s ¼ special needs ¼ whether they be academic, physical, emotional, or social”). (A limit is set only at the point where non-academic problems are “truly distinct” from learning problems. See further discussion below regarding the Worcester Public Schools case.)

Despite these declarations, districts often ignore or trivialize non-academic areas of need. Fearful of what they perceive as the potentially open-ended responsibilities entailed in addressing social/emotional needs in their own right, they dislike the relatively unquantifiable nature of progress in those areas as compared to the building of literacy and math skills, and they often assert that such needs belong under the jurisdiction of other entities, be they Parents or agencies, whose mandate is more centrally the emotional and/or social needs of impaired children.

Since the Dracut decision was issued, we have seen evidence of some districts attempting to reduce or eliminate non-academic goals from the IEPs of Students whose needs clearly include those areas. Presumably, some of those districts believe that if those goals don’t appear in IEPs, they will not be so likely to be faced with ongoing responsibilities like the ones ordered in Dracut. We hope we are wrong about this observation, but resistance to providing extensive services—especially outside of school hours—to Students with social-communication disabilities has always been widespread in our experience, and it is not surprising to see a renewed effort following a decision like Dracut. In any event, parents and advocates need to be alert and persistent in identifying, with the assistance of solid and credible experts, students’ needs for help in developing fundamental social and emotional skills to enable them to succeed following their exit from public school.

Considerations of Safety and LRE

Worcester Public Schools, BSEA #09-3109, 15 MSER 40 (2009), is another carefully written decision that bears a close reading for its insight into and analysis of a particularly complex area of special-education law: the intersection of education and mental-health needs. The principle of Least Restrictive Environment trumps all in this decision to deny the single parent’s request for a residential placement. Citing the legal requirement to exhaust less-restrictive alternatives, and considering the young age of this Student, the still-developing evidence whether a new day program could stabilize his performance and behavior, and the need to try additional services outside of school hours before concluding that a residential program was necessary, the Hearing Officer ordered the continuation of a relatively new (to the Student) placement in a tentatively promising day program plus a beefed-up program of after-school services at home and in the community. He did so with a note of obvious compassion for the family and some trepidation about the potential consequences if things went wrong.

The decision concerns whether an eight-year-old boy’s special needs could be addressed through a therapeutic day-school program, with or without intensive home-based services, or whether his deficits could only be addressed safely and effectively with a residential placement. The Student was diagnosed with Bipolar Disorder and Mood Disorder. He was at times aggressive and violent both at home and in school, and had been hospitalized several times. His IEP placed him at the Franklin Perkins School day program. His mother, the boy’s sole caretaker, asked for an order that Worcester provide a 24-hour therapeutic program. The Hearing Officer determined that the evidence did not support a finding that only a residential placement could meet his needs, but he did require Worcester to add a number of significant services to its IEP to provide the Student with FAPE. These additions included home-based services, parent training, behavior supports, coordinated behavior plans for home and school, counseling services, and consultation services.

This appears to have been a close and somewhat agonizing decision to reach, given the potential consequences if the result proved to be wrong. The Hearing Officer had to weigh the evidence of the Student’s troubled and somewhat violent history and the vulnerability of his single mother and others to his potential behavioral outbursts, as well as a relatively long history of failed efforts to address his needs through day-school programs and a short but tentatively promising history of success in reducing the number of behavioral outbursts following placement at the Franklin Perkins School’s day program.

One interesting aspect of the decision was the weight given to the particular expertise of the district’s key witness in the management of violence and the risk of serious injury in the parent/child relationship. That expert had apparently written a book on the subject. The Parent’s expert was applauded for his general credibility as well, though his testimony on the potential for minimizing the Student’s violence in the less-restrictive environment was discounted because of a lack of evidence regarding his experience with programs to evaluate or reduce dangerous behavior in the home.

Practitioners should note the level of assessment this Hearing Officer brought to the weighing of this testimony. Where the Parent bears the burden of proof, conclusory opinions will not carry that burden in many cases. The point is underscored by the Hearing Officer’s note that a report from a hospital team recommending a residential placement carried “little, if any, probative weight” where the report lacked a clear explanation of the team’s reasons for that recommendation. (Was it based on the conclusion that the Student could not progress effectively in his behavioral management without such a level of services, or on the belief that the mother would be unable to continue to care for him?)

This case emphasizes in passing a key element for practitioners assessing cases involving emotional/social/behavioral needs. Part of the analysis must determine whether the non-academic needs “can appropriately be considered separable from the learning process.” “[S]pecial education and related services,” says the Hearing Officer, “need not address problems truly ‘distinct’ from learning problems.”

Thus, unless parents can show that social/emotional issues undermine “learning,” those issues need not be addressed by the school district. Many cases founder on this muddy distinction as districts do their best to cleave students’ emotional/social problems from their academic performance. It is this type of distinction, in combination with the specter of ongoing responsibilities after 12th grade for students who pass MCAS but continue to be hobbled in their life skills (see the Dracut case, discussed above), that tempts districts to ignore or underserve real impairments, claiming that the emotional/social issues stand alone, with no effect on grades or MCAS results. But does “learning” mean only academic learning? Not within the discussion of these cases or in the definitions found at 603 CMR 28.02 (17) (“[p]rogress effectively in the general education program” means “to make documented growth in the acquisition of knowledge and skills, including social/emotional development, within the general education program, with or without accommodations¼” [emphasis added]).

The key, it seems to us, is to consider those areas of a Student’s deficits that are amenable to special education—learning—as opposed to requiring only accommodations, whether those areas are classically academic or involve, instead, the skills of social navigation, interaction and communication, emotional coping and self-management skills, or the skills of behavioral self-control.

Finally, the discussion in Worcester of the least-restrictive-environment principle warrants a look. This decision, more than many that merely cite the principle and move on, zeroes in on the underlying concerns that drive the principle. Citing the Rosie D. v. Romney case (410 F.Supp.2d 18 (D.Mass. 2006)), the Hearing Officer describes in detail the potential negative consequences of a residential placement to buttress his decision against making that kind of order at this stage of the Student’s young life.

A Volatile Relationship with No Exit

In the case of Ludlow Public Schools, BSEA #09-2368 and #09-2395, 15 MSER 1 (2008), a mother filed a hearing request pro se, asking for an outside placement for her six-year-old multiply disabled child on the basis of what she alleged to be an unsafe or negligent environment at school. The child had suffered numerous bruises, scratches, and other minor injuries. The district filed a separate action asking for the appointment of an educational surrogate on the ground that the mother was chronically abusive (verbally) to school staff. The Hearing Officer found that although the Student had had a number of injuries, there was no evidence that they were due to staff abuse or neglect. The Department of Children and Families (“DCF”) had screened out all reports, some of which were filed by the school district, and a DCF worker assigned to the child had refrained from filing reports herself when she had “no direct knowledge of the circumstances of the injuries.”

The Hearing Officer rejected the district’s request for the appointment of an educational surrogate where there was no legal authority to enter such an order. She referred to the provisions of state and federal law providing for educational surrogates and noted that they are limited to circumstances where a Parent cannot be located or a child is a ward of the state or an “unaccompanied homeless youth.” She also declined to order the appointment of a “facilitator,” noting that mediation and other options for helping parties work cooperatively are all based on the voluntary participation of the parties. She urged the parties to explore the possibility of finding a third party whom both sides could trust to help them navigate Team meetings and other interactions in the course of their relationship.

That some parents are volatile, suspicious, accusatory, abusive—verbally and sometimes physically—and generally difficult to work with for a school district is a fact of life. This case illustrates the paucity of effective options for smoothing out those relations or enabling education and child-rearing to go on without enormous energy being spent on navigating the pattern of strikes and counter-strikes between parent and school staff. Of course the Hearing Officer is correct that she has no authority to order the appointment of an educational surrogate to help a district avoid the problems of dealing with such a parent, and she is equally correct that she could not effectively order parties to enter what is in essence a voluntary process of mediation.

Beyond the volatility of the Parent in this case, part of the problem is the volatility of the circumstances—a succession of mild injuries occurring while the nonverbal and seriously disabled child is in school, with no reliable independent way to monitor the conditions within which those injuries occur. A parent who comes across as chronically angry and verbally abusive herself can often make agencies and professionals wish to be rid of a complaint as quickly as possible. This is human nature, and it takes a rare professional to look past the repugnance of having to listen to a stream of bad language and a trigger-happy attitude toward teachers and school administrators. School districts don’t just get the benefit of the doubt in matters of educational choice under IDEA but, especially against disagreeable Parents, in all other matters as well. Agencies and others who are all under-funded and over-burdened may naturally incline toward believing the calm and collected reports and explanations of school personnel long before they will dive more deeply to investigate multiple complaints by a difficult parent. We are not questioning the results in the Ludlow case itself—we, like the Hearing Officer, know of no evidence to do so—but we are concerned about the systemic problems around potential and actual abuse of seriously disabled Students in their classrooms.

Abuse in school districts, especially where restraint and seclusion practices are implemented by inadequately trained and/or exhausted and frustrated service providers, is an occasional reality. The Government Accountability Office has recently reported on exactly this problem, and Congress is considering whether legislative protections ought to be established to address the issue. (See http://www.gao.gov/new.items/d09719t.pdf for the report issued by the GAO in May 2009 on this subject.) Our laws in Massachusetts include fairly comprehensive provisions to govern the implementation of restraint and seclusion protocols (see 603 CMR 46.00). What is of concern, however, is that the success of these regulations in protecting children turns on effective self-monitoring by school districts themselves, only occasional monitoring by the state Department of Elementary and Secondary Education, and the very occasional complaint by an individual parent or professional. There are just too many ways that a bureaucracy like a school system can squelch internal whistleblowers (aides, for example, whose jobs are quite precarious in most cases) from reporting problems, and, again, agencies outside of school districts tend to give the benefit of doubt to the districts and—with their investigative resources already overextended—they may be too quick to dismiss the reports of a parent, especially one who is unpleasant to deal with.

Is there a solution? No easy or inexpensive solution, certainly, but one wonders if, for this class of high-risk problem, there should not be a much more aggressive monitoring presence by DESE. In the larger urban school districts, why not place a DESE investigative employee inside the offices of the districts with authority to see any file, observe unannounced any setting, accept and act quickly on any problem that affects the safety of a child? If it is not possible to place such a DESE employee in all of the larger districts, there might at least be provision for the placement of such an employee (or employees) where the number of children who are the subjects of complaints, whether “screened in” or not by DCF, rises to a point warranting a closer look over a significant period of time.

The BSEA, as this case demonstrates, may not provide an effective solution for a parent facing the possibility that their child is suffering abuse and especially not where other agencies have not confirmed the existence of a problem. It is particularly not viable where, as here, the Parent has no experts with relevant data ready to testify in opposition to the district’s position. But even with such experts, if there is a problem in a school district with abuse of children, a case by case solution is unlikely to solve the problem. It will take a more extensive and deeper systemic commitment to monitoring such matters to make a difference.

Joinder of DCF for Hospitalized Student

In Lawrence Public Schools, BSEA #09-2746, 15 MSER 9 (2009), a Student with PDD and a Mood Disorder had been hospitalized, was ready for discharge, but could not safely be discharged to any less-restrictive program than a residential placement. Neither the school district nor any state agency agreed, however, to support a residential placement.

The district asked the BSEA to order the joinder of the Department of Children and Families and the Hearing Officer agreed. DCF argued that its minimal voluntary involvement with the Student would not warrant an order to support a residential placement, and the school district should bear responsibility in any event because the need for residential placement was for educational reasons. The Hearing Officer effectively found that the issue of which agency would be responsible was the very question that he would need to decide and ordered DCF into the case rather than leave its responsibility for a possible separate evidentiary hearing.

The Hearing Officer relied on a statute that gives the BSEA authority over certain state agencies, including DCF, where an order for services from that agency might be necessary for a Student to receive FAPE and where the Student would be eligible for services from that agency under its own standards. Here the agency tried to argue that the Student would not be eligible for services under its standards because it believed the need for residential services, if any, would be for “educational” reasons and on that basis declined to accept voluntary custody of the Student. The Hearing Officer justifiably refused to take that conclusion on face value and indicated, instead, that that is the very issue he would need to determine in the BSEA process, following which, if he were to find that the need for residential placement was not “educational,” DCF’s reason for refusing to accept voluntary custody would evaporate and he would then be in a position to order DCF to provide the residential portion of a placement needed for the Student to obtain FAPE.

Where agencies continue to fight against joinder in BSEA proceedings despite the statute that was meant to slice through the complexities of “stuck” cases, BSEA decisions will hopefully follow the example set here to cut through the circular arguments raised by the agencies and expedite the process.

Burden of Proof Is a “Feather,” Not a “Sledgehammer”

In a dispute over which of two residential programs—Evergreen or the Perkins School—should serve the needs of a Student with complex educational needs, the Hearing Officer refused to dismiss the Parents’ case based purely on the burden of proof. In an earlier hearing on the merits, the Hearing Officer had concluded that neither party had produced sufficient evidence to show that its proposed program could meet the Student’s needs. She had ordered the district to fund an evaluation of the Student and the programs and left the hearing record open to receive further evidence once that evaluator’s work was complete.

The school district followed that action by filing a motion to dismiss the Parents’ case on the grounds that where the Parents had not carried their burden of proof in the initial evidentiary hearing, the school district’s proposal should be upheld by default, citing Schaffer v. Weast, 525 U.S. 983 (2005).In the ruling found at Duxbury Public Schools, BSEA #09-0295, 15 MSER 34 (2009), the Hearing Officer refused to allow the district’s motion, stating that the earlier conclusion had been only an interim decision and that to allow the case to be dismissed on this technical ground would strip the BSEA of its primary function—"to determine the appropriate special education program for a Student with a disability when a dispute exists." “There is no ‘default’ setting under the IDEA of Massachusetts special education law,” she cautioned. “A Hearing Officer may not endorse an inappropriate setting merely because there is insufficient evidence of an appropriate one.”

This decision, together with the earlier order keeping the matter open for additional evaluation where the Hearing Officer was unable to find that either proposal was appropriate, is a welcome reaffirmation of the BSEA’s mandate. Presumably, if the school district had been able to present sufficient evidence to show that its choice of provider could ensure effective progress for the Student, the case would have ended then. For the Hearing Officer to have allowed an inconclusive result to stand could have left the Student without FAPE. Instead, she used the authority of the BSEA proactively to seek out the information necessary to make a determination on the school’s program and, in this current order, has rejected the district’s curiously arrogant bid to shut the case down based on a technicality.

Doors Opening: the Right to Observe

Effective January 8, 2009, Chapter 363 of the Acts of 2008 amended the state’s special-education laws to provide that parents and/or their chosen designees will be given access for observations of a student’s program and of any proposed program for that student. (The statute amended section 3 of Chapter 71B of the Mass. General Laws.) For some years leading up to the enactment of that new law, many school districts had become increasingly guarded in response to Parents’ and their experts’ requests to schedule observations. They imposed conditions that had nothing to do with the safety of Students or the integrity of programs (for example, requiring that experts agree to give the district a copy of their observation notes before leaving the school), and they imposed limits that effectively deprived Parents and experts of a true opportunity to see a program (limiting observations, for example, to 45 minutes total, refusing access to some parts of programs, and refusing to permit service providers to speak with the observers, even outside of the program hours).

MGL c.71B, sec. 3 now provides:

To insure that parents can participate fully and effectively with school personnel in the consideration and development of appropriate educational programs for their child, a school committee shall, upon request by a parent, provide timely access to parents and parent-designated independent evaluators and educational consultants for observations of a child’s current program and of any program proposed for the child, including both academic and non-academic components of any such program. Parents and their designees shall be afforded access of sufficient duration and extent to enable them to evaluate a child’s performance in a current program and the ability of a proposed program to enable such child to make effective progress. School committees shall impose no conditions or restrictions on such observations except those necessary to ensure the safety of children in a program or the integrity of the program while under observation or to protect children in the program from disclosure by an observer of confidential and personally identifiable information in the event such information is obtained in the course of an observation by a parent or a designee.

The Department of Elementary and Secondary Education issued an advisory memorandum interpreting this new law early in January (see Advisory SPED 2009-2 at the DESE website, http://www.doe.mass.edu/sped/advisories/09_2.html). That Advisory followed discussions among several stakeholders in special education where participants representing both districts and families voiced their concerns and hopes for the implementation of the access law. The result was a balanced and clearly written DESE memorandum that effectively calls for cooperation around the scheduling of observations, an end to overly burdensome restrictions and conditions, and a case-by-case protocol to enable observations to occur without delay and in as full a measure as the circumstances warrant.

In the first BSEA decision to deal with observation access following the effective date of that new law, Weymouth Public Schools, BSEA #09-1335, 15 MSER 36 (2009), the Parent of a young child with autism argued pro se for the right to observe her child’s program for a total of 13 hours. She argued that her child’s disability was quite complex, that there were eight different service providers involved in her program across several different environments in the school, that the Student’s needs required attention during both academic and non-academic activities and both structured and less-structured parts of her day, and that the large number of hours she requested was necessary for her to fully evaluate the program. In opposition, Weymouth asked the Hearing Officer to limit her to one hour of observation per month, relying on an affidavit by its “autism specialist” stating that one hour per month is “sufficient time to enable a parent or consultant to evaluate a child’s performance in a program and the ability of a proposed program to enable such child to make effective progress.” Weymouth also cited its School Committee’s rule that visits by a Parent to a classroom should not exceed 60 minutes in a month. The Hearing Officer ruled for the Parent, ordering the 13 hours that she requested.

This case might have come out differently if the district had focused on the specific child involved and the program and services that she received. The Hearing Officer stated that “intuitively” he agreed with Weymouth that the Parent might not need 13 hours to fulfill the purposes of the observation statute—“to allow [the Parent] to participate fully and effectively with school personnel in determining Student’s appropriate educational program.” However, Weymouth had provided no evidence on which to make a determination for this particular Student and Parent about how many hours of observation would fulfill the purpose. Instead it had relied on a generic statement by its autism specialist and a one-size-fits-all rule promulgated by the school committee. Under the circumstances, he had no choice but to allow the Parent the full amount of observation time she sought.

We’re guessing that school districts in similar cases in the future will try to hone their arguments to suit the specific circumstances of the student involved and that parents will need to invest the same effort in order to persuade a Hearing Officer of the need for whatever amount of observation time they feel is necessary.

“Roots and Wings”

The Hearing Officer waxed eloquent in King Phillip Regional School District, BSEA #09-1334, 15 MSER 12 (2009), paraphrasing Hodding Carter in the course of her denial of the Parents’ request for funding at the Cardinal Cushing School: “There are only two lasting bequests we can hope to give to our children; one is roots; the other, wings.” She amplified the metaphor to point out the paradoxical nature of educating a student with complex disabilities and the impossibility of achieving perfection in that effort. Students need to be allowed enough room to experience error as well as be kept safe and “rooted” in the structure of their program, she opined—all by way of concluding that the complaints voiced by the Parent in this case about certain “glitches” that occurred during the Student’s day program offered by King Phillip (e.g., losing the first job he was assigned to and neglecting to pay for his transportation access) were not sufficient to find the program inadequate under IDEA.

The Hearing Officer acknowledged the Parents’ complaint to the effect that the Student engaged in inappropriate behaviors at home despite reports of appropriate behavior and progress in his ADL skills during his day program, but she faulted the Parents both for not reporting the specific home-based problems they were having to the Team and also for not taking advantage of some after-school services offered in the proposed IEP. She also found that the Parents did not follow through with an offer of services from DMR (now the Department of Developmental Services, or DDS). She opined that had the Parents worked with the district and DDS, the Student could have made effective progress in his behaviors and his mastery of ADL skills.

On the other side of the equation, the Hearing Officer also found that the Student did not need a residential program to meet his needs and that the Cardinal Cushing placement made by the Parents was too restrictive. Among other factors contributing to this finding was the testimony of Cardinal Cushing’s vocational director to the effect that the Student did not meet the criteria for a residential program and a Parent’s admission in testimony that the Student did make gains in his pragmatic skills when he participated in a DDS-funded after-school program in the community and that DDS had not prioritized the Student for residential placement.

In a relatively minor ruling within the decision, the Hearing Officer found some procedural errors in the district’s failure to implement portions of the Student’s IEP and ordered updated evaluations and coordination with DDS (if the Parents opted to access its services) as a remedy. She did not find reimbursement for the Student’s unilateral residential placement to be an appropriate remedy for the IEP implementation errors she found.

Taking the evidence reported by the Hearing Officer at face value and especially the facts around the Parents’ refusal to access services that had been offered through the Student’s IEP and other services available through DDS, as well as Cardinal Cushing’s own testimony that the Student did not fit the criteria for a residential placement, the outcome of the decision seems to be solidly in keeping with the IDEA’s mandate for the least-restrictive environment. Special-education advocates and attorneys could benefit from a close reading of the decision to remind themselves of the jeopardy in which a Parents’ case can be placed by passing over significant services that are offered by districts and available through other agencies. And it is difficult to understand why the Parents did not inform the district of the specific behavioral and other problems the Student was having in the home and community.

A procedural note: In footnote 2 of this decision the Hearing Officer noted that the Parents’ expert’s delays in producing test protocols in response to a subpoena caused “prejudicial” delays in the proceeding. Experts need to be aware that discovery of protocols from their testing of a Student will likely be allowed despite any requirements imposed on psychologists by the producers of the test instruments, albeit with conditions to preserve their confidentiality. (Here, the protocols were to be delivered to the school psychologist and shredded at the BSEA offices following the Parents’ expert’s testimony.)

DESE Cannot Sidestep Its Role as Ultimate Guarantor of FAPE

DESE sought to be dismissed as a party in the case of Stoughton Public Schools, BSEA #09-2276, 15 MSER 35 (2009), on the basis that its action of which the Parents complained occurred outside of the two-year IDEA statute of limitations. Stoughtonconcerns a Student who was kept from attending school for a period of time by a district that decided he did not reside there. The action that triggered the Parents’ claim against DESE arose when the Department’s Program Quality Assurance (“PQA”) Office issued a report following its investigation of the Parents’ complaint that their child had been wrongfully excluded from school in Stoughton. Strangely, PQA upheld the district’s determination that the Student did not reside there but then took no steps to ascertain what school district was responsible to provide special-education services to the Student, leaving the Student in limbo with no educational services.

Because PQA’s letter reporting its determination was issued more than two years before the Parents filed their BSEA proceeding against both Stoughton and DESE, DESE argued that it should be dismissed from the case due to the operation of the statute of limitations. The Hearing Officer quite rightly instructed DESE that the buck stops with them, since IDEA places the ultimate responsibility on DESE to ensure FAPE to all students with special-education needs. Since the Student continued without access to public education for some time after PQA issued its determination and within two years of the commencement of the BSEA proceeding, she held DESE in place as a party to the proceeding while the BSEA determined whether Stoughton or some other agency should be held responsible for the Student’s period of exclusion from school.

That a DESE office charged with the responsibility to ensure FAPE for children eligible for special-education services upheld a district’s decision to exclude a child from school in that district is one thing; but for that same DESE office then to close the book and leave that Student without an enforceable tie to another school district seems inexcusable. Why DESE needed to be reminded of its mandate is a mystery. Why the Department even attempted to escape its role in the case raises the question of whom the Department believes it is in the business of serving. Such behavior may be understandable in a time when public agencies like DESE are stressed by cuts in resources with no reduction in the demands made on them to serve the public interest—but that does not make it right. It seems pretty clear from the brief history described in this ruling that PQA made a serious mistake, either in its determination that Stoughton was correct about the lack of residency or in its failure to take the next step and refer the matter for a determination of who was, then, responsible to educate the child. That mistake left the child without public education for several months. It would be refreshing, to say the least, if an agency that makes a mistake of that magnitude in a child’s life would simply admit its error, correct the protocols of the office that made the mistake, and cooperate in any proceeding whose aim is to shape a remedy for the child who was affected.

When to File—the Statute of Limitations Trap

Brockton Public Schools, BSEA #09-2740, 15 MSER 103 (2009), demonstrates the need to file a complaint before the IDEA’s two-year statute of limitations runs out, even if the Parent and the school district are actively trying to resolve the claim by negotiation. Here the Hearing Officer found that the Parent knew of the time limit for seeking a remedy at the BSEA for the district’s continuing inability to staff home-based services promised in the Student’s IEP, but had not acted quickly enough to recover reimbursement for the several months of unilaterally arranged services. The Parent was awarded compensatory home-based services for 153 hours the school had not delivered within two years of her filing the BSEA action but was denied any remedy for many hours of undelivered services before that. The Parent acknowledged in testimony that she was aware of the statute of limitations.

The specifics of this ruling aside, practitioners should obviously pay close attention to the relevant dates of the events for which they are trying to find a remedy under IDEA and avoid letting the two-year mark slide by, as the consequence can be fatal to all or part of a claim.

Even if the Parents and district are negotiating an agreement that could potentially resolve a claim that is fast aging toward the two-year mark, the safest step would be to file a hearing request to preserve the claim. One might be tempted to seek an agreement from the district not to raise the statute of limitations as a defense if negotiations break down and the action must then be filed, but Parents and their representatives need to be aware that that might not provide fool-proof protection if the courts ultimately hold the IDEA statute of limitations to be jurisdictional rather than offering an affirmative defense. If it is a jurisdictional provision, then parties will not be able to waive the requirement and Hearing Officers will dismiss claims older than two years even where the parties have agreed to ignore the statute of limitations. The most that can be said before the courts speak on the IDEA’s specific limitations requirement (a quick look has not turned up any court decisions on this point) is that it is not safe to assume that the statute can be waived by agreement.

Recent statements by various U.S. Supreme Court Justices have reflected a surprisingly robust debate on the subject, with some Justices generally wanting to treat such provisions as an absolute bar to aged-out claims and others upset at the implications of that sort of hard line for plaintiffs. Per Justice Souter in dissent in a recent case: “The stakes are high in treating time limits as jurisdictional. While a mandatory but non-jurisdictional limit is enforceable at the insistence of a party claiming its benefit or by a judge concerned with moving the docket, it may be waived or mitigated in exercising reasonable equitable discretion. But if a limit is taken to be jurisdictional, waiver becomes impossible, meritorious excuse irrelevant.¼” Bowles v. Russell, 551 U.S. 205, 127 S.Ct. 2360, 2368 (2007) (Souter, J. dissenting).

We hope that any BSEA Hearing Officer would hold the statute of limitations under IDEA to be non-jurisdictional. The world of public education and the pursuit and provision of services to children with disabilities is fraught with complexity and risk. Much of the success of any program of services for students with disabilities depends on good working relationships between parents and school districts. It ought to be possible for parties who are trying to work out solutions over disputed issues in this arena to agree to hold off formal litigation without risking losing their right to pursue their claims because of the technical requirements of a statute of limitations, and it ought, in that vein, to be possible for parents to rely on a district’s agreement not to raise the statute of limitations as a defense if negotiations turn out to be unsuccessful.

Independent Evaluations: What “Level Playing Field”?

In Schaffer v. Weast, 546 U.S. 49 (2005), the Supreme Court’s decision that effectively placed the burden of persuasion on parents in the overwhelming majority of proceedings under IDEA, the Court noted that one of the stronger arguments for placing that burden on school districts instead of parents was that school districts enjoy a natural advantage in their access to information and expertise. The Court dismissed this argument, pointing out that “Congress addressed this when it obliged schools to safeguard the procedural rights of parents and to share information with them.” Alluding to the right to have an independent expert evaluation at public expense if the parent disagrees with the school district’s evaluation, the Court concluded that parents “are not left to challenge the government without a realistic opportunity to access the necessary evidence, or without an expert with the firepower to match the opposition.” In a later decision, Arlington v. Murphy, 548 U.S. 291 (2006), the same Court decided that expert-witness fees incurred by a parent are not part of the costs a school district must reimburse when that parent prevails in a suit under IDEA—a result that certainly undermined the rationale articulated in Schaffer insofar as the Court had tried to reassure parents about the lengths to which IDEA levels the playing field.

Parents cannot generally hope to prevail in any BSEA proceeding whose purpose is to determine whether or not a program offers FAPE without the support of one or more experts in the area of the student’s disability and/or of the kinds of educational interventions that are necessary for the student to make meaningful progress. Thus, access to credible experts outside of school districts is critical for parents to access the due process system under IDEA. For those without the means to pay for evaluations of the student and of alternative programs and placements, for consultation to parents along the way, for observations, for preparation of reports, for participation in Team meetings and at other gatherings critical to the due-process system (mediations, resolution sessions, pre-hearing conferences and settlement conferences), and for testimony at a hearing, the promise of IDEA is an empty letter. Any barriers to obtaining the help of independent experts as promised by IDEA effectively take away the keys to the due-process system.

Medford Public Schools, BSEA #09-2774, 15 MSER 62 (2009), deals with these issues where the theory of a level playing field hits the reality of the street. The Parents asked for orders that their school district reimburse them for the cost of several different independent evaluations at the full rates that the Parents paid to obtain them. The Parents had paid for four evaluations: speech and language, educational, neuropsychological, and central auditory processing.

For two of the evaluations—speech/language and educational—the district had agreed to the request, saying that it would reimburse at the rate set by the public agency responsible for establishing public rates. Regarding those publicly established rate limitations, the Parents argued that IDEA included no limitation on rates and that the full rate charged by the evaluators should be paid by the district. The Hearing Officer held, however, that the use of a public rate-setting procedure was a legitimate protection for school districts so that they “will not be forced to pay exorbitant IEE costs,” and that as long as there is an option for Parents to obtain evaluations at no cost to them, the district had fulfilled its obligation to pay for an independent evaluation. In a footnote, the Hearing Officer took “administrative notice that virtually all of the major teaching hospitals in Massachusetts accept” the publicly approved rates. He could have also taken administrative notice that virtually all competent experts working outside of hospital settings will not accept those public rates.

The Hearing Officer found that the district had not agreed to fund a neuropsychological evaluation or a central auditory processing assessment. While the district had apparently finally agreed to reimburse the Parents at the publicly established rates for both evaluations at a Resolution Session, the Hearing Officer noted that it was too late by that time—nine months after the fact—to limit the Parents’ reimbursement to the public rate and that the Parents should be fully reimbursed.

The publicly approved rates for various types of assessments are found in 114.3 CMR 30 (“Team Evaluation Services”). They are not market rates for the services of a competent and experienced independent evaluator. For example, the rate for administration of an IQ test under these regulations is set at $125.40 and for a combined IQ and personality evaluation at $376.20, where typically for an independent expert to administer an evaluation and deliver a meaningful set of findings and recommendations would require hours of the evaluator’s time and a rate of some $2,500 and upwards to adequately compensate for that work. (In the market of professional services, these are not “exorbitant” rates as the Hearing Officer might have it, but rates that often cover far less than the actual time it takes to produce a report of value to the family and the district.) Beyond that is the limitation that payment for an independent evaluation typically is restricted to the testing and issuance of a report without including any time to attend team meetings, observe proposed programs (an evaluator might be paid to observe a portion of a Student’s own program if the district is informed that the observation is a necessary part of the evaluation of the Student), all of which may be necessary steps for the Student actually to benefit from the evaluator’s work. Rate-setting adjustments are promulgated relatively infrequently and, especially in troubled economic times, tend to be relatively trivial.

The Hearing Officer’s “administrative notice” of the willingness of most teaching hospitals to accept the publicly set rates for evaluations also ignores the extent to which hospital-based evaluations are limited by their acceptance of those rates. Typically, such hospitals will incorporate protocols around their evaluations that may reduce the value of those evaluations. Some hospitals, for example, employ an abbreviated form of the WISC-IV, the instrument that nearly always forms the core of a neuropsychological evaluation, rather than administering the full set of subtests that make up the full WISC-IV protocol. This practice may be driven in part by the need to conserve resources: at the applicable public rates, a hospital probably cannot afford to administer the full WISC-IV for every child who must be evaluated. (Hospital divisions that implement the abbreviated WISC-IV do provide a solid professional rationale for doing so, by the way, and are fully capable of defending the validity of their results. The problem we are noting here does not concern validity but appearance and exposure to superficial cross-examination when questions are posed about the use of that abbreviated protocol.) In addition, hospitals are most often unable or unwilling to have their professionals carry out further steps beyond the evaluation itself—observing programs, attending Team meetings, etc.

Thus, if a Hearing Officer is going to take “administrative notice” of a Parent’s access to hospitals for independent evaluations, we would hope that the Hearing Officer would probe more deeply to observe the potential limitations built in to that resource and note the extent to which such access can still fall far short of that “level playing field.” In previous cases, the BSEA has found the rate-setting rates to have been adequate to withstand a challenge based on the argument that they deprived certain Parents of genuine access to independent evaluators (see, e.g., Arlington Public Schools, BSEA #95-1393, 1 MSER 138 (1995)), but we do hope the question will come up again in the right case and that a more realistic analysis will be brought to bear when it does.

No Stay-Put Against DMH

In Northampton Public Schools,BSEA #09-3451, 15 MSER 59 (2009), the school district asked the BSEA to order DMH to continue to fund the residential portion of an out-of-state placement for a Student with complex emotional, behavioral, and neurological disabilities. The ruling in the instant case concerned the Student’s “stay put” rights while the substantive issues in the case were pending. The substantive issue ultimately to be decided in the proceeding concerned which agency among DMH, DMR, and the school district would fund prospectively the residential costs, since no party argued that the residential placement was unnecessary. (In fact, it seems to have been generally agreed that this Student could not return home under any circumstances without jeopardizing his and others’ safety.)

The Student was placed under an IEP indicating that his “social/emotional and behavioral needs require a therapeutic, residential setting in order to make adequate educational progress.” DMH had funded the residential costs of the placement until the Student turned 19 but had determined under its protocols that he was no longer eligible for DMH funding as of that age, because he had been found eligible for services from DMR, and it had ceased paying the residential costs.

The Hearing Officer noted that no cost-share agreement between the district and DMH had been presented in evidence and that she accordingly had nothing on which to determine what, if any, ongoing responsibility DMH might have had to continue contributing to the funding of the Student’s placement after the alleged termination of his entitlement to DMH services. She appropriately turned to a federal regulation concerning interagency responsibility for a student’s special-education needs and ordered the district to fund the residential portion of the Student’s placement pending the ultimate decision in the case. That regulation indicates that if a public agency other than a school district fails to provide or pay for services that it should provide under an interagency agreement, the student’s services must be preserved nonetheless. A school district must in that event pick up the costs that the non-educational agency is alleged to be responsible for, but the district can then claim reimbursement from that non-educational agency. See, 20 USC sec. 1412(a)(12)(B)(ii).

The Hearing Officer took steps relatively promptly to resolve the interim risk of the Student’s losing his residential placement while the agencies worked out their differences in this case, once the district filed its motion to order DMH to continue funding pending the outcome of the case under “stay put.” The motion was apparently filed on January 22, some 18 days after the Student turned 19, and the ruling was issued 18 days after that. But the case in chief was filed by the district on December 4 and one wonders why, with DMH’s intent clear at that time to cease funding the residential portion of the placement on the Student’s 19th birthday (January 4), the district did not immediately ask for a ruling on the parties’ stay-put obligations, if in fact that was genuinely in question (given the clarity of the federal regulation placing responsibility on the district where other agencies withdraw funding). Instead, the district played Russian roulette with the Student’s placement, allowing DMH to cease its funding and asking for a ruling on the stay-put obligations only when the private placement notified the district that it would have to cease providing for the Student due to lack of payment. The Parents of this Student must have experienced some harrowing anxiety as they watched the agencies try to pass the buck and thus place their child—and themselves—in jeopardy.

Minimum Elements Missing for an Outside-Placement Bid

In Stoneham Public Schools, BSEA #08-1853, 15 MSER 74 (2009), the Hearing Officer made short work of the pro se Parents’ quest to have the district place their child—a bright sixth-grader with strong academic and social skills and specific learning disabilities in written expression and reading—at the Landmark School. The Student had apparently made good progress in his inclusion program in the district; the district had apparently added services each time an evaluator recommended them; and the testimony of Parent’s one expert witness who recommended a move to the outside placement was given “minimal weight” by the Hearing Officer. That witness, according to the decision, “did not assess [the Student]; was not aware of the special education programs or services [the Student] had received or was currently receiving, did not observe Stoneham’s program or talk to his teachers, and did not visit Landmark.” This case did not belong in due process as none of the essential elements for a Parent to carry the burden of proof were present.

The Chevrolet, Not the Cadillac

Hearing Officers may want to think of a new metaphor now that General Motors is in such dire financial condition, but in Arlington Public Schools, BSEA #09-2049, 15 MSER 64 (2009), the Hearing Officer instructed the pro se Parent that her request for an order to provide after-school tutoring for her son could not be granted because such publicly funded tutoring would provide him the “Cadillac” where he was entitled only to the “serviceable Chevrolet” and where the Hearing Officer found no evidence that the school’s program did not provide for the Student’s meaningful progress.

It is difficult for parents to understand that the legal framework supporting a child’s entitlement to educational services does not require the best-available services or those that would maximize a student’s progress, especially where Massachusetts parents once enjoyed the benefit of a higher-than-IDEA standard from the time that David D. v. Dartmouth School Committee (775 F.2d 411 (1st Cir. 1985)) confirmed the original legislative intent in the enactment of Chapter 766 of the Acts of 1972 until the Legislature reduced the standard to simple FAPE, effective in January 2002. However, the federal floor—FAPE—is indeed the standard at this time, and parents will continue to have difficulty carrying their burden of proof in close cases because of that. This case is just one more example and not a surprising one, especially where the Parent’s only witness was the privately funded tutor herself and that tutor apparently described the one-to-one tutoring process with this boy as a “luxury.”

The Hearing Officer also saw no basis on which to order more communication between the school and home. The tutor’s testimony was not helpful in this regard either, as she described the school district’s communication with her as “fantastic.” Beyond that, where the Parent complained of not knowing what the Student’s homework assignments were or, in the case of math, how to assist him “because she had learned math in a different manner than is being taught to [the] Student,” the Hearing Officer agreed with the district that it is not their responsibility to teach math to the Parent. She also found that the Parent had not followed strategies that the school personnel had provided or attended curriculum sessions at the school aimed at explaining the school’s approach to Parents.

504 and IDEA Statutes of Limitations the Same in School Cases

In Boston Public Schools, BSEA #09-1007,15 MSER100 (2009), Parents who had placed their child at the Carroll School some five years earlier sought to have the BSEA consider their claim that Boston had failed to offer adequate IEPs for three years prior to the date they filed their hearing request, rather than being restricted to two years as required by the IDEA’s statute of limitations. They argued that the Student was entitled to the benefit of a longer statute of limitations pursuant to Section 504 of the Rehabilitation Act of 1973 (20 USC 794).

The Hearing Officer ruled, however, that the applicable statute of limitations under Section 504, in cases where the material facts and claims in issue were substantially the same as those under IDEA, is the two-year statute of limitations set by Congress in IDEA. Since Section 504 contains no statute of limitations of its own, she looked to the “most closely analogous state statute to determine the viability of a 504 claim.” That analogous state statute she found in MGL Chapter 71B, the state’s special-education statute whose statute of limitations, “by default,” is that set by IDEA: two years.

The Hearing Officer’s reasoning is sound and in most cases before the BSEA there will be little if any difference between any claim parents could state under IDEA and one they could raise under Section 504. However, there is still room for school-based claims that are strictly Section 504 claims and, as to those, parents should be prepared to argue, if the events giving rise to the claim arose more than two years prior, for a different statute of limitations to apply. That would entail both differentiating the facts underlying the parents’ claim from facts that could support a claim under IDEA and persuading the Hearing Officer that the most analogous state statute is not our special-education statute but, perhaps, our tort claims statute of limitations, or three years.

No Recusal Where Parents’ Attorney Had Served as BSEA Intern

It seems to us that before filing a motion seeking to have a Hearing Officer recuse him- or herself in a case, one ought to have some very powerful reasons to justify that motion, as it calls into question the professionalism of the Hearing Officer and his or her ability to render an impartial decision. Reasons of that magnitude were clearly missing in Ayer Public Schools, BSEA #09-3811, 15 MSER 72 (2009), where the school district’s attorney stated that Ayer’s “administration expressed concern and misgivings about the Hearing Officer’s former working relationship with Parents’ counsel.” (Query whether an attorney must always follow the client’s bidding where professional judgment would dictate a different course.)

The Parents’ attorney had previously worked as a legal intern in the BSEA’s offices and as such had assisted Hearing Officers. Since that time she had practiced special-education law and had represented both parents and school districts at different points in her career. The Hearing Officer on the case had served in that capacity in Massachusetts for more than 12 years, had worked (as had all other Hearing Officers) with a good number of other legal interns in addition to the one representing these Parents, and had presided over many cases in which one side or the other was represented by a previous BSEA intern. She found “without a shadow of a doubt” that she had no bias in favor of the previous intern. She also found no basis on which an objective observer of the process would see any reasonable basis on which to question the impartiality of the Hearing Officer.

Time and resources were wasted in the pursuit of this motion, it seems to us. We doubt that the motion was the school’s attorney’s idea; it is far more likely, we think, that a school administrator demanded that the motion be filed (as intimated in the description of the reasons for the motion submitted by Ayer’s attorney). Perhaps the process and the outcome helped the administration of that school district to calm some genuine fear, but we think it more likely—particularly in light of other issues described in the decision reflecting Ayer’s wish to postpone the hearing—that the administration was looking for any possible way to delay the proceeding. This would be a tempting case for an effort to recover the fees and costs incurred in defending a groundless motion.

Conclusion

In this as in every quarter, the BSEA continues to prove itself a highly professional, knowledgeable, and fair-minded body of Hearing Officers. As we have commented in earlier contributions to this periodical, the BSEA Hearing Officers have struggled honestly and thoroughly to make determinations and rulings in keeping with the law. We do not always agree with the outcomes or the analyses reflected in these decisions, but we do know that we are fortunate to be practicing in this extremely complex area of law and process with an agency that is solidly grounded, experienced, and deeply rooted in the law as it has evolved over the 35 years of its life.

We have come to learn of alternatives to our state’s due-process system over the past few months, as we have attempted to understand and respond intelligently to a challenge that our Commissioner of the Department of Elementary and Secondary Education (DESE) laid down shortly after arriving in Massachusetts. He called to the attention of the federal Office of Special Education Programs (OSEP) a structural issue with the BSEA, having to do with its location “in but not of” DESE. OSEP replied, in effect, that the agency—its Hearing Officers and mediators—must be moved from under the apparent supervisory authority of DESE so that there would be no appearance of conflict where DESE itself is often a party to BSEA proceedings.

Following OSEP’s declaration, the Commissioner initiated a process to explore options for reconfiguring the due-process system. Just as this Commentary was undergoing its final editing, we were pleased to see that the Commissioner, after considering the input of many stakeholders and the history of the agency, has acknowledged the value of continuing to have “full-time specialists ¼ to ensure that the Bureau has the depth of knowledge in special education law it needs to be effective.” See the letter of Commissioner Mitchell D. Chester, Ed.D. to OSEP, June 15, 2009: http://finance1.doe.mass.edu/BSEA/USEDmemo2.html. He has thus effectively dismissed the possibility of replacing the system with independent contractors to decide special-education disputes and supported the continuation of the BSEA as a unit, though under a different roof.