The following article first appeared as a quarterly commentary in Massachusetts Special Education Reporter (MSER), a publication focusing on the decisions of the Massachusetts Bureau of Special Education Appeals.
Commentary on Massachusetts Special Education Decisions: 3rd Quarter, 2007, by Robert K. Crabtree.
Introduction
Several of the third-quarter 2007 BSEA decisions reviewed here concerned students who needed more intensive services than could be provided in inclusion settings. In some of those cases the parents lost their argument for less-restrictive placements (Springfield, Shrewsbury, Cohasset), while in others it was the school districts that failed to prove their inclusion programs would provide FAPE (North Reading, Longmeadow). In one case, Longmeadow, the district could not show that its inclusion program was appropriate, largely because it put forward no evidence showing any genuine training or involvement of the regular-education teachers in that program over a course of years. In Cohasset the parents wished to withdraw their child from special education, but the Hearing Officer found that the proposed IEP offered FAPE and effectively invited the district to proceed to court to prevent the parents from removing the student from the program. In others (North Reading, Springfield, Shrewsbury), evidence of a lack of progress in key skill areas led to findings that the students needed intensive services to make meaningful progress and could not make it in the regular-education environment. We have highlighted North Reading for its close and articulate analysis of what "effective progress" means under IDEA, and we recommend that it be read in full along with the Springfield case for an understanding of how language-based disabilities need to be addressed and of what evidentiary factors may turn a decision between inclusion-with-pull-outs and a comprehensive language-based program.
Through some cases we see bureaucratic delays denying services to students in obvious need. In Central Berkshire, a young child who resides in a pediatric nursing home received no programmatic support from his school district until a year had passed following the appointment of a guardian in the district. While the BSEA’s decision corrected this situation to a point, the district managed to avoid six months of special-education support in the end, as it was ordered to pay only for the average regular-education costs up to that point. In another, Boston Public Schools and Leonard, the district was again found to be ignoring its obligation to determine placements at Team meetings, as well as to deliver services as soon as an IEP is in place. The ordered remedy, however, applied only to Boston ’s delay in making the placement once the IEP was accepted, with no remedy this time for the procedural violation. In another Boston case, Boston Public Schools and James (two rulings), Boston avoided any real consequences for ignoring a potential student’s obvious special-education needs—the administrative office having been informed by the parent that her 18-year-old son could not read and had retardation—by refusing to treat the young man as an enrolled student until evidence of immunizations was in hand, and then by retreating into its protocol of placing all students in regular education until all evaluations are completed and an IEP is in place, without expediting the process at all. Cases like these argue for a systemic change toward emphasizing the fiduciary responsibility school districts owe to their students and potential students. Erecting bureaucratic protocols between students and parents, on the one hand, and the delivery of services to those students on the other may be a necessary part of the special-education system, but to allow those protocols to delay or block services to children with obvious disabilities and special educational needs is a travesty, as these cases illustrate.
A similar comment might be made regarding Dracut, a case involving an older student with severe cognitive and behavioral difficulties, where his need ultimately for a residential program seemed nearly inevitable, but the Hearing Officer instead ordered that a day placement plus some after-school services in the home be provided until and unless that program failed. In the course of the decision, the Hearing Officer strongly implied that the parents ought to access DMR services, without which they may not be able to show they have exhausted the less-restrictive options. Tough case: here it is not so much the bureaucratic protocols that stand in the way of what is likely needed, but the inappropriate weight given to the LRE standard that drives the outcome.
Finally, there are cases that show the BSEA in its role as the patient arbiter of what seems an extremely adversarial relationship between district and parents (see the Ipswich pair of rulings) and a case (Hamilton-Wenham) in which the BSEA refused to become a collaborator in the wish of a school-phobic and agoraphobic student not to attend school. (It is hard to tell from the facts in the latter case whether there was anything to the stated reasons of the student for not wanting to continue to attend the therapeutic school she was assigned to by the district, but the fact that apparently no direct efforts were made by the student or her parents to process those issues with the school was striking.)
When is some good progress and "proficiency" on MCAS not enough to show FAPE?
At first blush, the lead case for our discussion this quarter, North Reading Public Schools, BSEA #07-1386, 13 MSER 260 (2007), would seem to overturn some standard conservative rules of thumb for parents seeking to obtain outside placement at the BSEA, including that, in most cases, one should try the new and improved program a district offers before jumping ship to a unilateral placement. The close analysis offered by the Hearing Officer in this case to support his order of an outside placement amply supports his decision, however, and the decision gives practitioners a great lesson not to allow some apparently strong pieces of evidence favoring the school’s argument to blind one to the central issues and strengths of a case. What this came down to in the end was a battle of models of education to address a particular disability and whether there was enough convincing evidence to support rejecting the district’s chosen path and ordering funding of a different, more intensive model.
North Reading concerned a bright 12-year-old sixth-grade girl with dyslexia whose parents sought to have the district support placement at the Landmark School. The student had undeniably progressed in the subject areas of science, math, and social studies and in some specific language skills such as decoding. She had also achieved "proficient" scores in both the English Language Arts and the Science and Technology sections of MCAS testing, though in Math she was reported to "Need Improvement." Despite these indications of progress, however, the student had hit the wall in third grade in efforts to become a fluent reader. She was evaluated as having serious impairments affecting both her phonological skills and her reading fluency and was unable to carry over to the mainstream any gains she made in separate special-education classes.
Parents notified North Reading at a Team meeting in June of the student’s fifth-grade year that they would be enrolling the student at Landmark’s summer program and that she would then remain at Landmark for the next school year. North Reading convened a second meeting that same June to consider an independent evaluation and, at that meeting, proposed significant increases in the amount of pull-out services the student would receive in sixth grade, plus additional special-education supports in her mainstream classrooms. The parents gave written notice of their request that North Reading support placement at Landmark in the summer, and the student enrolled there without trying the enhanced service plan offered by North Reading.
The Hearing Officer looked behind the surface of the apparent evidence of meaningful progress in this case, and found that whatever progress the student may have made in subject-matter courses, she was seriously lagging in the central areas affected by her disability. Measuring "effective" and "meaningful" progress in the light of this student’s high potential, the Hearing Officer found that she should be making considerably better progress in her literacy skills, and that her failure to do so was attributable to the model of education provided by North Reading.
North Reading’s program was a typical model of pull-out services to address core disability-related needs together with varying amounts and types of support and accommodations in the mainstream, geared toward ensuring access to the subject matter of the content courses. The district’s end-of-fifth-grade offer to add significantly more pull-out time and more in-class supports did not change the model, but simply increased the efforts made to meet the student’s needs within that model. At that point, the parents had to make a choice: to try an enhanced version of the same model or to move the student to a comprehensive language-based program—a substantially different, more intensive model—to address her core needs. Among the risks they took by doing so was the loss of an opportunity to observe the student in North Reading’s enhanced program in the fall. As a result, they had to put all their eggs in the basket of arguments aimed at proving that the model couldn’t work, against the school district’s likely position that, if she had tried the new, improved version, she would have done fine.
Fortunately for the parents, they had the courage and the means to make the harder choice, and once they got to the BSEA, the Hearing Officer was prepared to examine closely a mound of evidence on each side of inherently ambiguous issues to reach a favorable result. Among those ambiguities were: what is the student’s "potential"? What constitutes "effective" or "meaningful" progress? And to what extent can an apparent lack of meaningful progress be attributed to the way the student has been educated, as opposed to other possible factors?
Here the Hearing Officer confirmed that "effective" progress must be measured in light of potential. Thus, passing certain of the MCAS tests and subject-matter courses was not enough to show that this student, with high potential, was progressing meaningfully. The key, as noted above, was that despite other apparent progress, she was not demonstrating sufficient progress (as her potential would predict she should make) in literacy skills. Beyond that, though, the Hearing Officer also analyzed the progress in MCAS and content courses for what it was—accommodation-laden results that left it unclear whether the student could access the learning on her own or had simply been moved along with the aid of readers, reduced expectations, and so forth.
A practitioner advising parents at this typical decision point has to agonize over whether a BSEA Hearing Officer can be persuaded that the "less restrictive" model has run its course and has not provided FAPE, and parents have to agonize over whether they can afford to carry both the expense of a unilateral placement—tuition and transportation—and the expense of litigating the matter. Intangibles and unpredictable elements abound, and no one can safely predict the outcome of a BSEA proceeding in a case of this kind.
Again, where inclusion hasn’t worked, a lack of effective progress overcomes the presumption in favor of mainstreaming.
Springfield Public Schools, BSEA #07-4675, 13 MSER 298 (2007), provides a comparable analysis and result as the North Reading case, this time, however, with the parents arguing for an inclusion program and the district proposing a comprehensive language-based program. Parents were primarily concerned with the potential for social isolation if their son were moved to the substantially separate program offered by the district, and they argued that he was making effective progress within the inclusion program. Springfield pointed to testing over several years that reflected only a few months’ progress in literacy skills during that time.
The Hearing Officer was persuaded by the results of both in-district and independent testing, which confirmed Springfield’s view of the student’s lack of progress and also yielded identical recommendations for a comprehensive language-based program. The Hearing Officer pointed to the gradually increasing levels of support that Student received from pre-kindergarten through fifth grade, together with evidence that, after all that, Student’s reading skills were only at the early- to mid-second-grade level in the context of average cognitive ability. She found the testimony of a current teacher who was certified in both regular and special education to be particularly persuasive, to the effect that "even with intensive parallel instruction in an inclusion class, [Student] could not access or participate in the regular grade-level curriculum."
The result in this case was not surprising given the relatively dramatic course of testing results at various intervals through the years, demonstrating glacially slow progress in literacy, the apparent bright potential of the student, and the constantly increasing teaching supports and accommodations provided within the inclusion setting before the district filed a request for hearing.
Springfield had recommended and parents had rejected a substantially separate language-based classroom more than once before this case was brought. Parents’ concern about social isolation was clearly heartfelt and, because Student had had a bad emotional reaction to one short trial of such a placement, their effort to trump the issue of "effective progress" with Student’s need for social connection and a sense of himself in the larger school community is understandable.
What would happen now if the parents were to choose to remove Student from special-education services altogether? (There is no sign in the case that they would do so.) See the next comment for a decision in which that was a central issue.
Can a district override a parent’s election to remove a student from special education with no potential for harm or substantial disruption?
The school district initiated the BSEA proceeding in Cohasset Public Schools, BSEA #07-5436, 13 MSER 319 (2007), against parents who were not represented by counsel, and won the agreement of the Hearing Officer that the student needed the services in a proposed IEP to make meaningful progress. The student was about to enter eighth grade, having been on IEPs since first grade to address issues arising out of a communication disorder, ADHD, impulsivity, and related deficits. Parents felt that the services under the student’s IEP had not been delivered consistently, that he had not benefited from the services, and that the design of the service plan was counterproductive because the student strongly resisted being singled out either in mainstream classes or for pull-out sessions.
Two aspects of this decision deserve attention. First and foremost, the district sought not only a finding that its proposed IEP offered FAPE, but permission to set aside the parents’ rejection of the IEP and to implement that IEP despite having received notice from the parents that they had withdrawn the student from special-education services. In response, the Hearing Officer cited MGL c.71B, §3 indicating that parents have a right to remove a student from special-education services to the regular-education program unless that removal would seriously endanger the health or safety of the student, substantially disrupt the program for other students, "or, if the child is currently in a special education program, deny the child a free appropriate educational program" (emphasis added). The Hearing Officer found no evidence of potential endangerment to the health or safety of the student or others, nor of any potential for substantial disruption of the program for other students if this student were removed to the regular-education program. Further, she found no authority in the BSEA to order a student to receive special-education services even if a parent’s removal of the student from special-education services would deny that student FAPE. To override that parental election, she said, the district would have to proceed to court per the language of Chapter 71B.
The statute to which the Hearing Officer referred provides for Hearing Officers to order placements and services that they determine are necessary to provide FAPE. The statute goes on to say:
Such order may provide for: the placement or services requested by the school committee, the placement or services requested by the parent, either of those placements or services with modifications, or such alternative programs or services as may be required to assure such development of such child. Said parents [. . .] may either consent to or reject such placement, program or services. If rejected, and the program desired by the parents [. . . ] is a regular education program, the department and the local school committee shall provide the child with the educational program chosen by the parent [. . .] except where such placement would seriously endanger the health or safety of the child, substantially disrupt the program for other students or, if the child is currently placed in a special education program, deny the child a free appropriate public education. In such circumstances the local school committee may proceed to the superior court with jurisdiction over the residence of the child to make such showing. Said court upon such showing shall be authorized to place the child in an appropriate education program.
We have learned that Cohasset has in fact filed an action in Superior Court seeking to have the parents’ election to remove the student from his special-education program overridden on the ground that such removal would deny him FAPE. The district won a temporary order for the student to remain in his special-education program, and a hearing on the merits is now pending.
This provision of Chapter 71B is rarely used to our knowledge. We hope that its highlighting in the Cohasset case will not lead to its more frequent use, especially in cases where parents are without means to defend their decisions. In the Cohasset case the parents were not represented and did not introduce the testimony of any independent evaluators to offset evidence presented by the school district, a situation that allowed the district to put on its case without contradiction. And whether or not a district carries the burden of proof, as it did in this instance, it will always enjoy the advantages of greater access to evidence and the tradition of deference granted to school personnel. Given a situation such as this one, parents who are unrepresented and possibly without means are at an extreme disadvantage. The "level playing field" mentioned by the Supreme Court in its case regarding the burden of proof (Schaeffer v. Weast, 546 U.S. 49 [2005]) tips more steeply against parents in a case like this one.
A second point of interest in this decision concerns the circumstances under which a school district may conduct a Functional Behavioral Assessment ("FBA") without the consent of the parents. Cohasset sought an order to allow it to conduct such an assessment and asserted that it did not need the parents ’ consent to do so. We have been aware that districts have asserted this position regarding FBAs from time to time, but to date we have not seen the question resolved definitively by the BSEA or any court.
As we understand the argument behind Cohasset’s position, the proposed FBA would not be a formal evaluation using standardized test instruments, as would be, for example, a speech/language evaluation using the CELF-R. It argued that unless a formal evaluation with such testing is involved, no consent is needed. The Hearing Officer summarized Cohasset’s argument as based on the assertion that its proposed FBA would be "only reviewing records and observing the student." She went on to say that "the school district has the right to review a student’s records and make educational determinations." Interestingly, she does not say the district has the right to "observe"—and we would argue that an "observation" as part of an FBA cannot help but be an "evaluation," since that is the whole point of an observation. Finally, the Hearing Officer said: "To the extent that the School District is evaluating a student the facts warrant that [the lack of parental] consent be overridden and as such the School District can conduct an FBA even if it does not have Parents’ consent." This statement rules on Cohasset’s request to perform an FBA without settling the question raised by the district’s alarming position (with which we disagree) that no consent is necessary for it to conduct an FBA.
An FBA, properly conducted, involves more than simply reading records; it is a formal "evaluation" or it is not an FBA. The point of an FBA is to systematically identify problematic behaviors, including measuring their frequency, intensity, and preceding stimuli, to evaluate the genesis and motivating causes of those behaviors (what "function" does the behavior appear to the student to serve), to develop proposed positive behavioral interventions aimed at reducing or extinguishing those behaviors, to design a detailed behavioral plan incorporating such intervention techniques, and to assess and re-assess the success of that plan as it is implemented and modify it as experience and measurements of ongoing behaviors warrant. Anything less—a mere review of records—is not a Functional Behavioral Assessment and should not be called such. And if it is a Functional Behavioral Assessment as defined above, there should be no question that a parent must consent to its implementation.
Delays in Boston lead to summer Melmark placement.
Boston Public Schools, BSEA 07-4997, 13 MSER 255 (2007), concerns a student with autism entering the school system at age three, with medical and other professionals doing their best to put the district on notice in plenty of time to provide services from the date of eligibility, only to find him without services some three-and-a-half months later. As a consequence of the delay, the Hearing Officer ordered summer placement at the Melmark School, a private facility offering intensive behavioral services. The Hearing Officer based the order on the delay between a Team meeting at which the student was found eligible for services and a date three months later when the student began attending a placement within the school district.
Once again (see, Boston Public Schools, BSEA #04-2506, 10 MSER 311 [2004]), Boston is instructed in this decision that its standard protocol for deciding placements violates IDEA. Boston is apparently determined, though, despite repeated BSEA decisions finding the practice to be in violation of IDEA, to continue making placement proposals at a central administrative office, rather than by the Team that establishes eligibility and the types of services to be delivered. Since this practice effectively excludes parents from participating in the placement decision (other than, in the common experience of our Boston clients, being sent here and there to observe programs suggested by Boston’s central office after the Team has met and an IEP has been signed), Boston continues to risk orders based on a denial of substantive procedural rights in every case where the practice obtains.
Here, though, the Hearing Officer did not base his order for a three-month placement at Melmark on Boston’s violation of placement-determination requirements. Instead, the order rests on the mere fact of delay between the Team meeting at which eligibility was found and the first day of enrollment at a placement ultimately accepted by the parents. The Hearing Officer explains that while a finding that the parents were excluded from the placement determination can lead to a determination that an IEP is deficient, if the IEP is nonetheless ultimately accepted by the parents, the previous procedural error cannot be used by itself to set aside that IEP. To achieve such a goal, parents would have to attack the IEP on its merits—a process that is left open for these parents should they decide to pursue it later in the BSEA.
For now, the Hearing Officer found that the delay between the Team’s finding of eligibility and the district’s making a program available, together with a second finding to the effect that the delay was "egregious," provided sufficient ground to order compensatory services. Practitioners need to take careful note of that second element: the Hearing Officer is apparently indicating that for a student to be entitled to an award of compensatory services, a district’ s failure to provide agreed services must be "egregious" under the circumstances. Here, because of the seriousness of the student’s disability, his risk of regression, the safety risks to himself and to others, and "Boston’s failure to provide any justification or other explanation for its failure to provide Student with any special-education and related services for approximately three months," the Hearing Officer concluded that the failure was "egregious."
The Hearing Officer’s emphasis on "egregiousness" as an element for a compensatory-services order is troubling. By implication, less-intensive needs and a smaller risk of harm to the student or others because of delay might not support such a finding. Districts and parents attempting the complex calculus of need and harm will not find a simple road map in this analysis. It is easy enough to say that a young child with serious autism must have intensive services available from the start and continuously forward from the determination of eligibility, but at what point along the line does a student’s mix of needs become sufficiently mild that delays in setting a program in place are found not to be "egregious"?
A practice note: This decision describes communications by medical and other professionals who communicated early and urgently to Boston about this student, apparently long before he turned three, in a determined effort to ensure that he would have services beginning on his third birthday. Even with such a dedicated and sophisticated team of professionals behind this student, Boston somehow was able to put off the student’s first Team meeting until two weeks after his third birthday and, though now he will receive a summer program at Melmark in compensation, Boston also managed to put off entry into a program for three additional months. (Effectively, all this student achieved through the BSEA process was an enhancement of his summer program entitlement, from one that offered merely enough to prevent "substantial regression" under the usual summer-services standard to one that enables him to make meaningful progress through the summer.)
Just how long before a student turns three years old must a district like Boston be informed of a student’s needs, and evaluation-consent forms be signed, in order to ensure that the student actually begins a program at age three? Given the extremely generous 45-school-day deadline for districts to complete their work following consent for evaluations, it appears that parents and professionals need to alert districts and ensure that signed consent forms are in place at least six months prior to the third birthday.
A district ignores its own professional’s recommendations and keeps regular-education providers out of the loop.
The Hearing Officer in Longmeadow Public Schools, BSEA #05-0972, 13 MSER 307 (2007), found numerous examples of Longmeadow’s failure to address the student’s needs for services as a person with a non-verbal learning disability and related academic and social/emotional deficits. Chief among those failures was Longmeadow’s omission from the student’s IEP of several key services and accommodations that were recommended by its own school psychologist, and its failure to implement those few services that it did include. In addition, where Longmeadow’s strategy for meeting the student’s needs was to provide services within an inclusion model, its failure to educate its regular-education teachers about non-verbal learning disabilities or to train them in strategies to address the needs of a student with that disability bespoke a systematic practice of ignoring those needs. The Hearing Officer seemed especially struck by evidence of persistent efforts by the parents to have the district provide training to regular-education teachers, rebuffed at every turn, and by the failure of the district to include a regular-education teacher at key Team meetings and even to have a regular-education teacher testify at the hearing in the matter.
Asked to make "Frazier findings," the Hearing Officer did so, thus confirming for the benefit of any claims the parents might pursue in federal court pursuant to 42 USC §1983 that the student had been deprived of civil rights under color of state law. See, Frazier v. Fairhaven School Committee, 276 F.3d 52 (1st Cir. 2002); 122 F.Supp.2d 104 (D.Mass. 2000). However, it is unlikely that a §1983 claim would have any real chance of yielding an award of damages in this Circuit, given the holding in Diaz-Fonseca v. Puerto Rico, 451 F.3d 13 (1st Cir. 2006), to the effect that "where the underlying claim is one of violation of the IDEA, plaintiffs may not use §1983—or any other federal statute for that matter—in an attempt to evade the limited remedial structure of the IDEA."
The Hearing Officer ordered retroactive reimbursement to the parents for the costs they incurred in securing an alternative school placement. Although the chosen school did not have state approval as a special-education school, the Hearing Officer determined that the school satisfied the requirements for reimbursement for a unilateral placement since its services were "reasonably calculated to provide some of the missing educational benefit to the Student," citing Florence County School District Four v. Carter, 510 U.S. 7 (1993); Matthew J. v. Mass. Department of Education, 989 F.Supp. 380 (D. Mass. 1998), and others. She found that the school chosen by the parents did provide "small cohesive classes, academic reinforcement, and assistance with study and organizational skills that [the student] needed in order to make progress commensurate with his cognitive potential." She also found that the student’s reading and writing abilities, as well as his self-confidence as a learner, improved during his enrollment at the school. On these bases she determined that he had "derived a demonstrable educational benefit from his attendance there," and found the parents entitled to reimbursement for the expenses they had incurred in providing that program for the student.
Boston allowed to ignore an obvious need.
A pair of decisions involving "James"—whose mother brought him and his three younger siblings from the Dominican Republic to Boston in 2003—illustrates how a bureaucracy can effectively ignore a young person’s obvious needs by operating "to the rule" (as when teachers, unhappy about their system’s personnel policies, will sometimes "teach to the rule"). Boston Public Schools, BSEA #07-5365, 13 MSER 247 (concerning the application of IDEA 2004’s statute of limitations)("James I"); James v. Boston Public Schools, BSEA #07-5365, 13 MSER 331 (2007), concerning a claim of violation of child-find obligations)("James II").
The student’s mother in this proceeding had immigrated from the Dominican Republic in 2001 and, in 2003, brought her four children to live with her. When she went to a Boston administrative office to enroll her children, in October 2003, she explained to a Spanish-speaking employee that her 18-year-old son could not read or write and had mental retardation. After discussing the matter with the Boston employee, she left the office believing that James could not be enrolled in school, but without understanding any reason why that was so. (One speculates that she must have believed it had to do with James’s age, and wonders how any competent school-department employee could allow her to so misunderstand the situation.) She understood that her other three children, all younger than James, could be enrolled once their immunizations were up to date, but she believed that even with updated immunizations her oldest could not be. It was not until November 2006, after a Department of Mental Retardation employee assisted the parent with obtaining immunization for this son and documentation was delivered to Boston, that Boston finally enrolled James.
In James I, the Hearing Officer held that the statute of limitations that has applied under IDEA since July 1, 2005, following amendments to IDEA enacted in 2004, would bar any claims for Boston’s actions or failures to act prior to March 22, 2005, two years before the date James’s complaint was filed. The student’s attorney argued for the three-year statute of limitations that had applied before that date to apply to Boston’s actions in this matter, since those actions occurred before the enactment of IDEA 2004, but the Hearing Officer rejected those arguments, relying on a number of cases holding that it is the time of filing of a complaint (rather than the time of the action about which a plaintiff complains) that determines what statute of limitation applies: thus, for any complaint filed before July 1, 2005, the old three-year limitations period would have applied, while for any complaint filed after that date, the newer two-year limitations govern the proceeding.
The Hearing Officer found no exceptions detailed under IDEA’s statute of limitations provision to apply to this case. In particular, he agreed with Boston’s argument that it could not be held to have withheld information from the parent (an exception to the limitations rules) because until a student is enrolled, there is no obligation to provide notice of procedural rights to a parent—a "catch-22" for Boston, which refused to enroll the student until immunization records were in place. (True, the Hearing Officer also noted that the parent had clearly received notice of procedural rights regarding her other three children and could thus be deemed to have known of her rights regardless, but the rule articulated by the Hearing Officer did not turn on that fact and would apparently apply even without this parent having seen the rights brochures in her other children’s cases.)
James II concerns a request for a finding that Boston failed to meet its child-find obligations. As with the treatment of the statute of limitations issue, the Hearing Officer turns his decision on Boston’s practice and protocol regarding enrollment and, on that basis, lets Boston off the hook. Boston did not enroll James until his immunization records were up to date. For whatever reason, the parent took from her discussion with Boston’s administrative office that she could not enroll the student at all, leaving the reader of these decisions to wonder how any school employee could have allowed that misunderstanding to happen in the first place. Making matters worse, Boston had no practice of following up with parents after an initial contact where enrollment would be delayed because of immunization requirements and did nothing to follow up with this parent to see if she had taken steps toward satisfying those requirements. As the Hearing Officer noted, Boston leaves things entirely up to the parent in such circumstances. In this case a gross misunderstanding of her son’s right to enroll apparently prevented the parent from obtaining the required immunizations until much later, after she obtained the help of a DMR employee.
What, one wonders, happens to a child who is much younger than James and in the same situation? Would the Hearing Officer find no affirmative obligation to follow up in that case as he did here?
The Hearing Officer’s analysis of the "child find" issue is very troubling. Beyond describing the general obligation to publicize the availability of evaluation procedures and otherwise search generally for children who may need special-education services, he does acknowledge the case law that supports an obligation to evaluate a specific child if that child is called to the district’s attention, "even if the parent’s request or indication of need is inartfully stated." In this case there was no dispute that the parent described her son to Boston’s administrative employee as being unable to read or write and as having mental retardation. What more does a district need to hear to spot a possible special-education need? But the Hearing Officer allowed Boston to hide behind its standard protocol: first a child must be enrolled—and the district undertakes no responsibility to follow up and see that a missing requirement is fulfilled—then, once the criteria for enrollment are in place, the district assigns the child to a regular-education program, and only after that might it refer the child for an evaluation.
So the result of the protocols in this case allows Boston to turn a deaf ear to news of a potential student with obvious special-education needs, provide "guidance" that leaves the parent thinking her son cannot be enrolled under any circumstances (probably thinking that he is too old to enroll), take no later steps to follow up to ensure that the parent truly understood the information necessary to get the young man enrolled or that he was getting the immunizations the lack of which had blocked immediate enrollment, and then take refuge in its standard protocols to disguise its knowledge of a student who needed to be pulled into the child-find net. Under those circumstances this Hearing Officer found Boston free from any obligation to provide "prior written notice" or information about parents’ and students’ rights until the parent had completed a step the completion of which she did not think would make any difference.
This decision allows an urban district to stall or even avoid providing services to a person with obvious needs. If a similar fact pattern comes up in another case before the BSEA, we hope that at least the child-find aspects of this Hearing Officer’s analysis will be set aside. A district should not be released from its child-find responsibilities when it knows about the needs of a specific school-age resident, just because that person has not yet completed the steps necessary to enroll. In fact, the child-find obligation ought to be seen as a basis to hold a district to an affirmative obligation to follow up and follow through in all such circumstances, rather than allow a school-age person, known to the district as having a disability, to slip through the cracks of the bureaucracy.
Integration is not for every student: an expert trips on an unqualified bias for inclusion.
[Please note that the following is a corrected version of our comment as it appeared in MSER's third quarter issue. We will seek a correction in the next issue of MSER.]
In the case of Sally and Shrewsbury Public Schools, BSEA #07-2709, 13 MSER 325, parents fought the school district's proposal to move their eight year old daughter with autism and global developmental delay to a private school placement for students with comparable disabilities. Shrewsbury had been serving Sally in a substantially separate classroom, with some integration, accompanied by an aide, for some regular class activities, lunch and recess. The legal question for the hearing officer was whether with any additional accommodations or services Sally could reasonably be expected to progress in the less restrictive environment of the current Shrewsbury program, as it was clear that she had not progressed effectively as it was.
Parents had a steep uphill fight on their hands, as the hearing officer was apparently provided with a record in which all experts, inside and outside of school, agreed that Sally needed a more intensive program than the district could offer and that her interfering behaviors (tantruming, flopping to the floor, bolting, ingesting inedible objects, etc.) were either not diminishing or were increasing. Only one expert strongly supported further efforts to maintain Sally in Shrewsbury's environment and suggested a number of possible approaches to try to make that model work better. That expert, however, testified on cross-examination that her "bias is in favor of public schools and environments that are much less segregated than a private setting" and that she had never made a recommendation on behalf of any parent that a private school setting was the least restrictive environment for that student. (One wonders how many public-school based professionals might have to say the same under oath, though their "bias" is, in those cases, often condoned because of the legal presumption in favor of the less restrictive environment.) Against that lonely opinion stood a number of experts with contrary opinions, including one - Dr. Castro - whom the hearing officer described, apparently based on previous cases over which he had presided, as "a pre-eminent expert in the field of childhood autism" - all supporting a move to the more intensive offering of a private day program.
Likely adding to the force of the hearing officer's decision, was the fact that this case had been taken off the BSEA's calendar for a two month period during which Shrewsbury hired a behavioral expert in Dr. Castro's office to review records, observe Sally in her placement and make recommendations. That expert joined the others in the end, advising that Sally needed a different, more intensive program.
This appears to have been a valiant effort by parents to give their child, against all odds, a program offering at least some exposure to typical peers and a "regular" education environment, but the odds seem to have been heavily against them in light of the expert opinions as reported by the hearing officer. All practioners know the difference, sometimes, between "truth" and "proof", though. This is especially so where the issue concerns whether an integrated environment can work for a student, because so much of the success of such a program depends on the attitudes and resources of the school system involved as well as the working relationship between parents and the system. In that light, we would not be surprised, despite the expert opinions reported by the hearing officer, if the student in this case proved able to be effectively educated with a fresh start in an integrated program in a new school system as compared to this case where the school had likely become exhausted with the effort and the relationship had deteriorated to the point of litigation.
Tough call on a bid for a residential placement.
The Hearing Officer in Dracut Public Schools, BSEA #07-5592, 13 MSER 280 (2007), heard evidence showing that a severely disabled 17-year-old student had been chronically out of control both inside and outside of school hours (including breaking the thumb of a school-bus driver and jeopardizing his mother’s safety in the home), had frequently refused to attend school, and was generally making little or no progress in the goals of his IEP. Despite this record, the Hearing Officer found that the parents had not made a case for a residential placement. Her decision was based on the parents’ having rejected a move to a collaborative program that offered significantly more services aimed at coordinating between the school program and the home than had Dracut’s previous "life skills" program at the student’s high school. The Hearing Officer was influenced, too, by evidence that the mother had not pursued services that would have been available through the DMR, and thus had not exhausted service options that might have obviated the need for a more restrictive environment.
The decision reminds us of the continuing relevance of the line of cases beginning with Abrahamson v. Hershman, 701 F.2d 273 (1st Cir. 1983), and David D. v. Dartmouth School Committee, 775 F.2d 411 (1st Cir. 1985), to the effect that a residential program may be necessary for a student who needs a "comprehensive, 24-hour, highly structured special education program that would address social and behavioral needs in a consistent manner." As the Hearing Officer noted, if the student "requires a residential program in order to learn, [the district] must provide such services under an IEP even if he also needs the same type of placement for safety or other reasons."
The Hearing Officer stopped short of ordering a residential placement, however, because "neither intensive home services nor DMR services have been tried." The only expert outside of the school district whose opinion was considered had recommended home-based supports, an extended-day and extended-year program, and other services to help the student generalize skills from school to home—not a residential program. Thus, the Hearing Officer found, "Parents have not shown that [the student] requires a residential program in order to address his social and behavioral needs or that [his] needs could not be met in a less restrictive setting."
The decision suggests a practice note for parents’ advocates: if parents decline to pursue the potential services of an agency like DMR, they leave open the question whether, with those services, the student might make better progress. While a Hearing Officer will not order parents to access such services, their failing to do so may make it difficult for them to argue that less-restrictive options have been exhausted.
Parents frequently ask us whether they need to allow their child to fail in a program they know in their hearts cannot work. Often, sadly, we must answer that, in some cases, that is indeed what the weight of the IDEA’s presumption in favor of the LRE and the deference given to school districts’ choices of approach amount to. This case demonstrates the truth of that advice at the outer limits—the history of this student’s aggressive behavior, his chronic resistance to attending school, and the extreme severity of his cognitive impairments (he was reported at the age of 17 to be functioning at a one-to-three-year-old skill level in most areas, with his nonverbal cognitive functioning at the first percentile) all would seem to support, at his age, a move to the more intensive, comprehensive services available within a residential program. But the LRE principle drove this Hearing Officer to a different conclusion, requiring parents to go further down the "less restrictive" road until and unless they can demonstrate that the student is not able to progress even with home and school coordination and an extended-day program.
This case also demonstrates the effect of an independent expert’s opinion when it stops short of supporting the result the parents later seek at hearing. If the expert in this case had unequivocally indicated that Student needed a 24-hour environment with consistent and comprehensive expert services in order to make effective progress in his social, behavioral, and adaptive skills, the decision might have come out differently. Did the Children’s Hospital expert actually believe that Student could make effective progress across environments with some home-based training and consultation and with some DMR assistance, rather than moving to a residential program, or was she giving the less-restrictive option too much the benefit of the doubt? These are judgment calls, and experts have to weigh their read of a parent’s wishes and abilities to accept and follow through on training and consultation into their opinion of the prospects for a program like the one recommended here. Sometimes experts make choices in their recommendations that substitute legal principles for what would be their professional opinion if freed of those principles. Thus, having heard for decades that IDEA requires placement in the least-restrictive environment, some professionals have incorporated that legal principle into their thinking, as if it had scientific validity as a criterion for assessing and prescribing services for a subject of an evaluation. In our view, professional evaluators should recommend what they think is appropriate and feasible, and leave it to the Team and/or a Hearing Officer to decide if their recommendations are outweighed by the LRE requirement.
One wonders what a professional, unmoored from the LRE principle, would actually conclude about this student’s chances of making effective progress without a comprehensive, tightly designed and implemented program throughout his waking hours. There are not too many years left for him to receive educational services under IDEA—he will be 22 in a flash. Meanwhile, exhausting the possibilities of the buckled-together services of a day-school program, with two hours per week of home consultation and, if the parents so choose, some services from DMR will take quite some time. Hopefully, no one will be injured in the course of that exhaustion.
One more thought: Following some amendments to IDEA in 2004, there has been a renewed emphasis on the goals espoused by IDEA in its purposes section and on the transitional-services provisions of the statute that ostensibly aim toward students achieving those goals. Services are supposed to be geared toward the student exiting the system ultimately with as much ability as possible to live independently, work, obtain further schooling, etc. If such an emphasis were brought to bear in this student’s circumstances, what would the district and the professionals assessing him say about his prospects after he reaches age 22? And what services are needed and at what intensity, over the period until he reaches that age, for him to have a fighting chance of realizing the goals of IDEA? Can he do that with a few home-based services tacked on to an extended-day program?
Student wants out of therapeutic school; the Hearing Officer doesn’t buy it.
Hamilton-Wenham Regional School District, BSEA #07-7139, 13 MSER 287 (2007), concerns a 15-year-old girl with "anxiety, fearfulness, withdrawal, school avoidance behavior, and agoraphobia." She had attended the Arlington School on the grounds of McLean Hospital under an IEP from December through May 2006, when her parents removed her unilaterally from that placement. Hamilton-Wenham requested a hearing for an order supporting her continued enrollment at the Arlington School. The Hearing Officer agreed.
Parents provided a report five days before the hearing in this matter to the effect that Student had a serious emotional disability, but also a learning disability, arguing that the Arlington School could not meet her academic needs. Neither parent testified; the only witness on their side was the student herself. She testified that early in her short enrollment at the school a teacher had called her a "slut" and tried to advise her about a relationship she was in and that a clinician had spoken with her about a dress code. She never reported any incidents to the school and did not tell her parents about them until much later. They pulled her out of school without telling the Arlington School about the alleged incidents. The student testified that she had stayed at home since leaving the school.
The Hearing Officer was clearly dismayed and concluded in favor of continuing the Arlington School placement because "[Student] desperately requires a structured therapeutic placement to address her significant emotional and social disabilities in order to receive FAPE, so that her innate intelligence and academic abilities can be brought [to] the surface and allowed to flourish."
Given the student’s school phobia and agoraphobia, doesn’t this student’s collection of symptoms predict exactly the resistance and withdrawal this case already describes? And given her intelligence, isn’t it just as predictable that she would manipulate facts to enlist her parents to achieve her end? Given all that, why not order additional services designed to help this student (and her parents) to attend and engage in the school that hopefully can help her? If the record did not include sufficient evidence to support a detailed order of this kind, why not order additional assessments to identify the sources of her behavior and prescribe services that can get her to school?
Can parents insist on compliance or establish stay-put rights under an IEP they refused to sign?
In a ruling on a motion by parents for compliance with an earlier decision, the Hearing Officer instructed the parents that their refusal to sign an IEP indicating at least their partial acceptance or consent to its implementation, which had formed the basis in part for the earlier ruling, effectively tied the district’s hands and those of the BSEA. The case, Ipswich Public Schools, Ruling on Motion for Compliance with Decision, BSEA #07-0962, 13 MSER 291 (2007), involves a child whose needs include, among other services, assistance with a feeding program. The earlier order [12 MSER 336 (2006)] had required that Ipswich propose a formal evaluation of the child’s feeding issues, "upon receipt of appropriate medical documentation and/or releases from Parent." The parent apparently felt that existing documentation was enough and did not wish to allow Ipswich access to a broader base of information about the child’ s needs or open the door to an in-depth assessment by an evaluator chosen by the district and, therefore, withheld consent to the evaluation. Then the parents filed this action for an order that Ipswich comply with the earlier order.
The Hearing Officer absolved Ipswich from implementing the IEP that had not been signed, on the basis that without full or partial acceptance or consent by the parent to its implementation, the IEP could not be implemented and the child was entitled to services only in accordance with her stay-put rights.
In an effort to move the parties past their impasse over the scope of any feeding evaluation, the Hearing Officer "clarified" her earlier order by indicating that, rather than opening the door to a blanket release of all medical documentation and information, the school should have any proposed evaluator specify what particular records would be necessary for him or her to conduct the evaluation, and the release should be confined to those specific data only.
One wonders how the parents got into the bind this ruling reflects. The Hearing Officer notes that the parents indicated they’ d been advised by an attorney not to sign the IEP, but did not identify that attorney. If an attorney did so advise these parents (we think it unlikely), it is difficult to fathom the basis for that advice. The school was thereby handed a legal reason not to implement the IEP, and the result of the parents’ refusal to sign the IEP in any manner or to sign a release for records that an evaluator would need was to cause significant delay—more than half a year at least—in implementing the feeding evaluation that was the subject of the earlier decision. The facts and the history described in this and the earlier decision reflect a significant level of distrust between the parents and the district. No advisor should be making a bad relationship worse through their counsel.
In another decision involving the same parents, issued later in the summer, Ipswich Public Schools, BSEA #08-0055, 13 MSER 302 (207), the parents were concerned about a three-week gap in services that would occur before the seven-week summer program promised in the student’s IEP. According to a key evaluation, the child would regress substantially with any gaps longer than one week. By the time the matter was heard, the parents had come to know that, due to the delivery of compensatory services at the start of the summer, the expected gap did not occur. They pressed for a ruling nonetheless, realizing that compensatory services would not give their son a right to a continuous program under his stay-put entitlement in the following summer. The Hearing Officer found nothing on which to base a finding that a 10-week summer program constituted the student’s last agreed-upon placement and declined to determine such a program to be his stay-put program.
Strangely, this hearing decision did not consider the merits of an implied claim by the parents that a three-week gap before a summer program does not meet the standard of avoiding substantial regression for the student, but considered only the issue of whether he was entitled to a longer program as his stay-put right. In the interest of judicial economy, it seems to us that that issue should have been tried on the merits. Given the many times this family has returned to the BSEA (the decision in this case refers to several previous decisions and appeals from those decisions involving this student), it seems likely that the issue of the three-week gap will be back to the BSEA for a determination before long. (Perhaps the Hearing Officer has done enough, though, to persuade the district to close that gap in its next summer-program proposal by referring to the parents’ concern for continuity as "appropriate" in light of the recommendation of a well-regarded expert in autism for no more than a one-week break in services for this child.)
Forty-five school working days, and then some, to put off a district’s inevitable responsibility for a severely needy child.
In Central Berkshire Regional School District, BSEA #06-3983, 13 MSER 295 (2007), a pediatric nursing home sought to have approximately one year’s worth of the educational costs of a student’s placement paid. The student—an extremely disabled child—had been removed from his parent at an early age; his parent had moved to another state and abandoned him; his paternal grandmother—a resident of a member town of Central Berkshire—assumed guardianship, and DOE allocated fiscal responsibility to Central Berkshire for his education. In this decision, Central Berkshire had accepted fiscal responsibility (though not without having appealed that assignment previously), but disputed the date on which it became responsible for the educational costs charged by the nursing home. The result of months of delays was the passing of a full year from the time the guardianship was established to the date an IEP was signed.
The Hearing Officer worked through the sequence of communications, consents, and delays and determined that Central Berkshire became responsible for the student’s education immediately upon the appointment of his grandmother as guardian. However, he limited that responsibility to that of a district for a regular-education student as of the date of appointment of the guardian, and set the date for the district to assume the cost of special-education services a full six months later, on May 1, 2006.
The guardianship appointment was made in October 2005. Two weeks later the nursing home informed Central Berkshire that the child’s guardian lived in a member town and requested the district to assume responsibility for the educational costs of the nursing home ’s program. The district declined.
It was the nursing home, not the district, apparently, that then filed a request on December 1, 2005, for an allocation of fiscal responsibility regarding the student. In mid-December 2005, DOE determined that Central Berkshire was responsible. A series of appeals and requests for reconsideration followed by Central Berkshire, and ultimately DOE reconfirmed its original assignment in early April. From that date forward, Central Berkshire acknowledged responsibility.
The district did not send a consent form for evaluations to the guardian until mid-April. It re-sent the consent form to the guardian on May 1. (There is no information in the decision concerning whether the district made any attempts to contact the guardian by phone or in person.) A month and a half later, the guardian delivered a signed consent. The district then apparently took every day available to it—45 school working days—to complete its evaluation and deliver a proposed IEP. An IEP was finally executed at the end of October 2006 - a full year after the appointment of the guardian for this student with severe and manifest special-education needs!
How did so much time pass, and why did the Hearing Officer end up allocating regular-education responsibility through May 1 and special-education responsibility only after that? The decision cannot be faulted in its reading of the applicable law, it seems, since school districts are required to take responsibility for a student’s education process and services from the date of an assignment of responsibility by DOE, and then can evaluate only with the consent of the guardian and deliver services only with an executed IEP. So said the Hearing Officer in this case, and he called the district back to December for the date upon which it should have sent a consent form to the guardian, instead of waiting until after the confirmation in April of DOE ’s original determination of responsibility. After that, he said, the length of the process was partly due to the district’s delays and partly due to the guardian’s not providing consent until more than two months after the original request was sent by the district (again, nothing is said about what steps, if any, the district made to contact the guardian outside of the two mailings). When the math is completed, adding 45 school working days to the receipt of the signed consent after the additional delays while the form lingered in the guardian’s hands, and on the assumption that the district should have delivered its request for consent in December, the Hearing Officer came to May 1, 2006—more than six months after the guardian was appointed—as the date on which an IEP would have been in place, and he assigned special-education responsibility from that date.
The result of that decision is that the district owes the nursing home an amount equivalent to its average regular-education per-pupil costs between October 25, 2005, and May 1, 2006, and only after that must it assume the full cost of any special-education and related services provided to the student.
The Hearing Officer’s logic within the applicable statutes and regulations is clear. The logic of the outcome within the reality of this student’s circumstances and needs, however, is puzzling. First, this district heard about the student in mid-November from a pediatric nursing home. Was there some question that the student would prove to be eligible for special-education services? Why didn’t the district contact the guardian and send a consent form right away, in full knowledge that the child would need its special-education support? Was there some legitimate question whether the district was legally responsible for this child? How could there have been? The applicable regulation, 603 CMR §28.10(3)(a), declares the responsibility of a district for a child in a pediatric nursing home when the guardian resides in the district. See, Cohasset Public Schools, 12 MSER 8 (2006) (holding that an attorney’s guardianship of a child made his home town responsible for the child’s education). And even if the district’s appeal for DOE to make a different determination were not frivolous, the object of the law is to have the child receive services while the agencies squabble over such matters; at the least, then, this district should have acted immediately to work with the guardian toward the ultimate delivery of an IEP. Why, by the way, was it the nursing home rather than the district that asked DOE for a determination, if the district thought there was a question about responsibility? Didn’t the district have an affirmative obligation both to treat the child as its own student immediately and to file any request for a determination, if it thought there was a legitimate issue, to ensure that the child would receive services at the earliest opportunity? In light of all the other ways it found to delay the process, it appears that the district adopted a passive stance intentionally to delay the inevitable addition of this child to its rolls.
A case like this exposes the unfortunate limitations of our special-education system in yet another way: the Hearing Officer calculated the date of responsibility for special-education services based on the law’s allowance of 45 school days following receipt of consent for an evaluation to provide an IEP. The full 45 school days! Those provisions do not prohibit a school district from acting more quickly than 45 school days, and in a case where the need for special-education services is so obvious, why should a district be permitted to take every available day to complete that task? Hearing Officers should not be so quick to allow districts, who have a fiduciary responsibility to their students, to adopt passive, delaying strategies even to the most obviously needy children among their charges. It seems to us that in some cases, depending on the urgency of the needs, including circumstances like the ones in this case, the BSEA should be prepared to apply the requirements of IDEA to expedite the delivery of services. No reason appears in the discussion of this case why the district could not have completed any necessary evaluations long before 45 school days had passed, and the district should not have been permitted to take its time in responding to the need.
Conclusion
As in every quarter, the Hearing Officers of the BSEA continue to "leave it on the field" in their efforts to wrestle the ambiguities of IDEA to some fair result. To a person, they have struggled honestly and thoroughly to make determinations and rulings in keeping with the law. Our comments this time include a number of critical observations about the outcomes of some cases; these are directed as much at the legal standards and protocols which the Hearing Officers must apply, as to any particular disagreement with the Hearing Officers. There is no doubt that some of the local bureaucratic processes reflected in these cases hurt the students that school districts are supposed to serve. Altering that situation in any material way may ultimately be the job of legislators and advocates, but if Hearing Officers witness a district’s "to the rule" use of procedures to ignore a student’s obvious needs or repeated instances of non-compliance with procedural requirements that have been called clearly to a district’s attention, we believe that there should be some recourse through the BSEA.
K O T I N, C R A B T R E E & S T R O N G, L L P
One Bowdoin Square
Boston, Massachusetts 02114-2925
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