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: 2nd Quarter, 2007, by Daniel T.S. Heffernan
Introduction
This quarter’s cases provide insight into the BSEA Hearing Officers’ thinking in a number of particular areas. Many of the decisions confirm the well-established importance of presenting live expert testimony based upon recent and in-depth evaluations of students and programs. These cases should also help disabuse any litigant of the notion that Hearing Officers are constrained to order either the district’s program or the parent’s program; Amherst-Pelham in particular demonstrates how extensively the Hearing Officer can modify a proposed IEP to make it conform to FAPE. There is also a decision addressing an increasingly prevalent issue—the adequacy of programs that extend beyond the typical high-school program; Marshfield delineates some of the factors at play in such a determination.
I have something different in mind
In Amherst-Pelham Regional School District, BSEA #07-2259, 13 MSER 160 (2007), the Hearing Officer, following the U.S. Supreme Court decision in Schaffer v. Weast, 546 U.S. 49 (2005), assigned the burden of proof to the school district as the party seeking relief. The student was high-school aged and had a diagnosis of global developmental delays, a medical condition manifesting in frequent nose bleeds, and a possible diagnosis of autism. Parents objected to the high-school program offered by the school district for safety and other reasons and instead proposed a primarily home-based program with certain services attached to the middle school. The Hearing Officer held that the student had made slow but steady progress in the district’s programs and there was no reason to deprive the student of a high-school experience. Included in the opinion is an instructive discussion regarding the exclusion of expert reports because the district did not have the opportunity to cross examine the experts at the hearing. However, what is most striking about the opinion is how extensively the Hearing Officer modified the school’s program. She ordered the district to reconvene the Team and include the hiring of an autism specialist, incorporate services and consultations, change the emphasis of the after-school program, increase the quantity and quality of staff training, and other modifications. In addition, the Hearing Officer employed the "substantial regression" standard in evaluating the appropriateness of extended-year services ("EYS"). While the Massachusetts regulation 603 CMR 28.05(4)(d) embodies the substantial-regression standard, several decisions interpreting federal law provide a broader standard for EYS, admonishing school districts against "converting what should [be] a multifaceted inquiry into application of a single, inflexible criterion." Johnson v. Independent School District No. 4, 921 F.2d. 1022, 1031 (10 th Cir. 1990). Other courts have considered multiple factors, such as emerging skills and degree of progress toward IEP goals, as proper criteria; Reusch v. Fountain, 872 F.Supp. 1421 (D.Md. 1994). See also, M. M. v. School District of Greenville County, 303 F.3d 523, 537-538 (4th Cir. 2002); Alamo Heights Independent School District v. State Board of Education, 790 F.2d 1153 (5th Cir. 1986). Therefore, we disagree with the use of the single "substantial regression" standard in determining the appropriateness of EYS.
Adequate progress and outside placements
Two decisions with different results examine the issue of what constitutes inadequate progress justifying funding of an outside placement. Groton-Dunstable Regional School District, BSEA #07-1194, 13 MSER 210 (2007), involved a 12-year-old girl whose seizure disorder led to neurologically based learning disabilities. Parents unilaterally placed her at the Learning Prep School in Newton at the beginning of her sixth-grade year. The student’s history in public school included disputes over the findings of eligibility for special-education services and 504 plans. However, the real focus of the dispute was whether the student had made adequate progress in the public-school program. There was no dispute that the student had made some progress in the Groton-Dunstable program, but was it adequate in light of the student’s potential? The Hearing Officer looked closely at this issue, not accepting at face value the student’s "good grades" or the glowing quarterly reports. The grades were considered unreliable indicators of her progress because they had been achieved with significant accommodations. The quarterly reports were found to be conclusory, and lacking the specifics necessary to assess the student’s progress accurately. In contrast, the student’s difficulties at home were not contradicted by the school district. The Hearing Officer reminds us that FAPE requires meaningful and measurable progress. Because that type of progress was not found in this student’s case, and because the evidence supported the need for a small, substantially separate program that the family’s independent experts said she required, the Hearing Officer ordered reimbursement and future funding for the unilateral placement at Learning Prep.
Harwich Public Schools, BSEA #06-4721, 13 MSER 188 (2007), involved a unilateral placement at a residential program at the Hillside School at the beginning of the student’s fifth-grade year. There was disagreement between the parties about Student’s diagnosis and, in particular, whether it included Asperger’s Syndrome. There also were numerous behavior incidents, one of which (a threatening note) caused Harwich to inform the police. Subsequently, the parents were hesitant to share information about their son because they believed Harwich had inappropriately shared information with the police, such as the opinion that Student was "seriously emotionally disturbed." They refused or modified requests for evaluations and limited the information that could be shared by Student’s therapist with Harwich. The parents did seek otherwise to accommodate Harwich’s requests, for example by offering to have specific questions answered in writing instead of granting blanket authorization to speak with Student’s therapists. Harwich maintained that although Student did have a learning disability, he was making effective progress, and it would not offer him an IEP. In August 2006, the parents notified Harwich that they were unilaterally placing him at Hillside School. In response, Harwich stated that it would offer an IEP, the main portion of which included an eight-week extended evaluation to answer specific questions, such as what services does Student require and whether Student is a danger to himself or others. Harwich proposed to have the extended evaluation conducted at Devereux or any other approved special-education facility. Notably, Hillside is not an approved school.
The decision in favor of the school district demonstrates the peril parents face when they refuse to give unencumbered consent to evaluations requested by the school district. The Hearing Officer noted that since Harwich was blocked from getting information it required, the only way it could do so was through the extended evaluation it proposed. The Hearing Officer expanded the scope of the extended evaluation, to include such things as a functional behavioral assessment. The refusal to allow unlimited evaluation of Student also undercut the parents’ claim for compensatory services because the Hearing Officer found that Harwich was prevented from obtaining the necessary information to determine eligibility and develop an IEP. The Hearing Officer brushed aside two significant issues that we believe deserved more consideration and weight. First, the parents acknowledged that they did not believe their son required an out-of-district placement at Hillside, but given that the school year was about to begin, Harwich was not offering an IEP, and they did not want to insert him into a detrimental situation, they had no choice but to place him unilaterally at Hillside. Second, the Hearing Officer found that the partial IEP and extended evaluation were procedurally inappropriate. Concerning both, the Hearing Officer again pointed to the parents’ failure to allow a full opportunity to evaluate the student. In addition, the parents’ failure to appeal the earlier findings of "no eligibility" undercut their claim that the district’s actions left them no recourse but to unilaterally place their son. Ironically, one factor that the Hearing Officer pointed to in upholding the district’s determination of no eligibility was the fact that Student was receiving "A" and "B" grades at the time. In Groton-Dunstable, discussed above, the Hearing Officer declined to accord much weight to grades unless there is evidence they correlate to true achievement by the student. We believe the Groton discussion of how grades should be assessed is the more appropriate approach.
The value the BSEA places on appropriate evaluations is also evident in the Hearing Officer’s overriding the parent’s refusal to allow a psychological evaluation in Duxbury Public Schools, BSEA #07-2419, 13 MSER 223 (2007). The student had had psychiatric hospitalizations at Franciscan’s Children’s Hospital and a partial hospitalization at McLean Southeast. The mother e-mailed the school psychologist that she believed her son would try to kill himself at school. The mother refused Duxbury’s request for consent to conduct a psychiatric evaluation and home assessment, citing concerns over privacy and disruption to his ongoing therapeutic relationships. In addition, the mother had consistently refused to share unfiltered information about her son’s mental health. The Hearing Officer held that such a refusal amounted to a barrier to the provision of FAPE, and under 603 CMR 28.07(1)(b) the BSEA had authority to give "substitute consent" for the evaluation. She thereby ordered that the evaluation go forward without the parent’s consent.
In Hopkinton Public Schools , BSEA # 07-0982, 13 MSER 227 (2007), the parents lost their bid for funding of their unilateral placement of their daughter at the Carroll School at the beginning of her fourth-grade year. The Hearing Officer delineated seven bases for his decision. These included the fact that Hopkinton had consistently evaluated the student and provided services to her since the beginning of first grade. The Hearing Officer found that although Student was functioning approximately "1+" years below grade level, this was not a sufficiently significant gap to justify placement outside the public-school program. Although her progress in school had been slow, it had been steady under IEPs less intensive than what was proposed by Hopkinton. The Hearing Officer noted that none of the parents’ private evaluators stated that private placement was necessary. Concerning the important issue of the student’s emotional well-being, the Hearing Officer noted that her emotional issues were also manifest at Carroll, and both Carroll and Hopkinton proposed to address those issues in the same manner. One issue noted repeatedly by the Hearing Officer, although not specifically designated as one of the seven bases for his decision, does raise concern: the Hearing Officer admonished the parents for not following a recommendation that the student’s ADHD be addressed with medication. A suggestion that parents medicate their child clearly runs contrary to IDEA and should not be a factor in determining the appropriateness of the school district’s program.
Post-high-school "transition" programs
Marshfield Public Schools, BSEA #07-1052, 13 MSER 238 (2007), addresses the increasingly prevalent issue of "transitional" programs—those extending beyond the typical high- school years. This 19-year-old student attended the Marshfield public schools for her entire educational career. She achieved all of the requirements for graduation except passing the math portion of MCAS. Marshfield proposed that Student attend its Transitional Learning Center ("TLC") program. Parents, however, placed her as a residential student at the College Internship Program ("CIP") at the Berkshire Center. Under Marshfield’s TLC program, Student would receive day services in functional academics, social skills, life skills, and vocational skills, including an internship. The Hearing Officer found that the proposed IEP, while not very detailed, addressed the recommendations of parents’ outside evaluator and therefore provided FAPE. There was no support in any reports or testimony for a residential placement. The Hearing Officer noted that while CIP might offer a college-type experience, college and residential-type experiences for their own sake are not the responsibilities of the school district. The claim of social isolation was discounted by Marshfield’s evidence as well as by the parents’ evaluator’s finding that Beth was socially well adjusted and had a good group of friends. This decision illustrates how critical it is that the parents have clear and specific support from their experts for the program they choose.
Experts are key
Again, there are a number of decisions that demonstrate the importance of adequate expert support for parents’ positions. These further demonstrate that there can be no skimping on expert work if one wants to mount a successful challenge. At hearings, expert reports will not suffice—the experts should give live testimony and therefore be available for cross-examination by the school district and in-person evaluation by the Hearing Officer; Amherst-Pelham, 13 MSER 160 (2007). The experts must observe the program and speak with the service providers; Duxbury Public Schools, 13 MSER 125 (2007). It is helpful to have more than one expert supporting the parents’ position; Groton- Dunstable, 13 MSER 210 (2007). Evaluations must be current; Blue Hills Regional Technical School District, 13 MSER 119 (2007). The quality of the experts and expertise with the relevant disability is also a key factor: in crediting the parents’ expert over the schools’ experts, the Hearing Officer noted in Swansea Public Schools, 13 MSER 113 (2007), that the parents’ expert had a greater depth of knowledge and expertise about the students’ disabilities and interactions among them.
I promise this time I’ll be better
Duxbury Public Schools, BSEA #07-3141, 13 MSER 125 (2007), involves a dispute over what agency would provide home-based applied behavior analysis ("ABA") services to a five-year-old boy with Pervasive Developmental Disorder–Not Otherwise Specified. There was disputed evidence that the previous provider employed by Duxbury had been inadequate and ineffective. The parents sought an order that Duxbury employ a future provider different from the one it now proposed. Although the agency proposed by Duxbury had previously provided the home ABA to the student, Duxbury now proposed different individual personnel. The Hearing Officer’s decision for Duxbury is founded upon two very well established and difficult-to-overcome principles. First, school districts have wide discretion in hiring personnel or agencies to deliver services. Second, and very frustrating to parents, past failings and inadequacies do not necessarily prove that future services will be inadequate. Administrative assignment of qualified personnel is left to the discretion of the school district. To successfully challenge the school district’s choice, parents in these disputes must demonstrate that the designated provider is unqualified and that different credentials or qualifications are necessary to enable the student to receive FAPE.
A school’s policies of grading and promotion were also given much deference in Pioneer Valley Performing Arts Charter School, BSEA #07-0850, 13 MSER 149 (2007). That charter school used a "competency"-based system in determining whether a student would be accorded credit for a course, in addition to an "80% deadline rule" providing that student must meet deadlines for work assignments. Parents had sought modification of these rules to accommodate the student’s disabilities, which prevented him from being able to produce the required percentage of work assignments within the specified time. While additional time to complete assignments is a standard and not burdensome accommodation provided to many special-education students, the Hearing Officer here refused to order the charter school to vary from its policies. This is particularly distressing in light of the fact that the charter school admitted, and the Hearing Officer found, that this grading and promotion policy did not provide a method of determining whether the student attained his IEP goals. The Hearing Officer noted that failing to attain competency as defined by the charter school did not mean the student had to leave the program; just that he had to repeat the class. The Hearing Officer concluded that the grading and promotion policy did not deprive the student of FAPE. However, she did order that the charter school retain and regularly consult with an expert in designing and implementing accommodations and services for adolescents with ADHD and executive-functioning disabilities within mainstream educational settings.
Discipline
Two cases illustrate the relief that is available from the BSEA to parents in discipline cases. The student in Boston Public Schools, BSEA #07-6134, 13 MSER 158 (2007), was suspended for ongoing graffiti. Boston held a manifestation determination at which it concluded that the student’s conduct was not a manifestation of his disability. Subsequently, the student was expelled for the remainder of the academic year and assigned to an alternative school. Instead of appealing to the school superintendent, parents filed a hearing request with the BSEA, claiming that the conduct was a manifestation of his disability and seeking to overturn the expulsion. Boston filed a motion to dismiss, claiming that before filing for a BSEA hearing, the parents were required to "exhaust" their administrative remedies first by appealing to the superintendent. The Hearing Officer examined the IDEA and related regulations, as well as decisions from other jurisdictions, in determining that no such requirement was present and he would therefore not impose such an additional hurdle on the parents. The Hearing Officer also noted that the BSEA appeal would encompass certain legal issues, such as whether the student’s conduct was a direct result of Boston’s alleged failure to implement the IEP. These are issues within the ken of the BSEA, but not of the superintendent.
The Hearing Officer in Swansea Public Schools, BSEA #07-3824, 13 MSER 113 (2007), overrode the school’s determination that the act of the student was not a manifestation of his disability. The 17-year-old student had multiple disabilities, including Oppositional Defiant Disorder. The incident in question began when the student was told to put away a Pop-Tart and escalated to his having his cellphone taken away and ultimately to his screaming at a teacher and blocking her exit. While acknowledging that the incident was frightening and physically threatening, the Hearing Officer found that the conduct was a manifestation of his combination of disabilities. There was little dispute that there was direct and substantial relationship between the student’s disabilities and his agitated and oppositional conduct prior to the confrontation with the teacher. The testimony of school witnesses established that in similar situations, steps were taken to de-escalate the situation. However, this approach was not given an opportunity in the current situation.
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Milton Public Schools, Department of Education, and Boston Public Schools, BSEA #07-4642, 13 MSER 137 (2007), involves a complicated analysis of what town bears fiscal responsibility for a student. Although such a fact pattern is unlikely to be replicated, the Hearing Officer’s great efforts in synthesizing the pertinent facts and reviewing various statutes should be applauded, as they demonstrates the value of searching exhaustively for the facts and law that supports one’s position. The student was born in the Republic of Congo and was sent to live with his uncle in Boston. The uncle acted as his parent but had no formal legal responsibility for him, and DSS took custody over him when he was 14 years old. Since the uncle and student last lived together in Boston, and since DSS cannot be deemed a "parent," Boston had financial responsibility for the student until he reached 18, regardless of the fact that the uncle had subsequently moved. After turning 18, the student entered into a voluntary placement, but not custody, agreement with DSS. Since he was unable to establish residence because of his temporary placement in a residential school, the student was, in essence, to be considered homeless under the federal McKinney-Vento Homeless Assistance Act. Under that act, the school district that was programmatically responsible for the student prior to the his becoming homeless shall remain programmatically responsible; 42 USC §11431(b). Therefore, Boston continued to bear the fiscal and programmatic responsibility for the student.
Brockton Public Schools, BSEA #07-3829, 3 MSER 235 (2007), involved a dispute about whether Brockton was obligated to pick up the funding for 10 hours per week of "mentor services" that had previously been funded by a DMH agency. The Hearing Officer held that it was not a "related service" that was necessary for the student, in a residential private school, to obtain FAPE; it had never been part of his IEP, no experts testified that it was necessary for FAPE, and the private school had available a similar service.
The limits of the BSEA’s authority over state agencies can be seen in Brockton Public Schools and Department of Social Services, BSEA #07-5798, 13 MSER 147 (2007). DSS required the parents to enter into a voluntary placement agreement regarding their children in order for DSS to continue to fund a portion of the children’s program. The parents objected to this requirement, fearing that it was the first step in their having to relinquish custody to DSS. The Hearing Officer found that DSS’s requirement was consistent with its governing regulations. The parents offered no support for their claim that this was the first step in losing custody or that this prerequisite to providing funding violates the IDEA and the Americans with Disabilities Act. In ruling on DSS’s motion to dismiss, the Hearing Officer found that he did have jurisdiction to consider DSS’s obligations under the ADA. However, there was no evidence that this regulation ran counter to the ADA or IDEA. Therefore, the Hearing Officer had no authority to order DSS to ignore its own regulations.
Conclusion
Through its decisions, the BSEA Hearing Officers reiterate the importance of well founded expert opinion in prevailing before them. They also demonstrate the limits of their authority in giving deference to school districts on issues of grading, promotion, and administrative assignment of personnel. However, they have also demonstrated the reach of their authority in ordering extensive modifications to IEPs and intervening in discipline matters. They again reiterate that FAPE requires services that allow students with disabilities to make meaningful and measurable progress.
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