The issue of funding an independent evaluation was also decided on a motion for summary judgment in Hudson Public Schools, 15 MSER 133 (2009). The Parents requested an independent Functional Behavioral Assessment ("FBA"). In response to the request, and in compliance with 34 CFR 300.502and MGL c.71B s.3 (requiring a school district to file a hearing request within five working days if it disagreed with the request), Hudson initiated the proceedings and subsequently moved for summary judgment. Consistent with the Scituate decision above, the Hearing Officer noted that without the precondition of Hudson's having conducted its own evaluation, the Parents' request for funding of the independent evaluation must fail.

These decisions do not preclude parents from seeking funding for independent evaluations when the district has failed to conduct requested or required evaluations. They do make clear that one must adhere to the applicable regulations to be successful in obtaining public funding for independent evaluations.

Graduation and transition

Two cases address the increasingly prevalent issue of transition programs and graduation. The school district in Marlborough Public Schools and Dearborn Academy, 15 MSER 113 (2009), terminated the Student's eligibility for special education on the grounds that the Student had met all requirements for graduation. Dearborn Academy was brought into the action on the claim that it had improperly administered the MCAS to the Student--or, put less delicately, because it had improperly assisted the Student in passing the 10th-grade MCAS. The Student is diagnosed with language-based learning disabilities, ADHD, executive functioning deficits, and social/emotional issues and had been accorded special-education services since early elementary school. In 2007, he was diagnosed with a chromosomal disorder that explained some of his disabilities and that led to some additional emotional upheaval. While enrolled in the Cambridge public schools, he was placed in sixth grade at Learning Prep School. After approximately two years there, his behavior deteriorated and he was placed at Dearborn Academy, where he was when the family moved to Marlborough via Chelsea.

Concerning the MCAS, the Student had failed in his first two MCAS attempts. Then, a teacher who knew Student very well and who had provided regular one-on-one instruction during Student's junior and senior years and been one of his basketball coaches, acted as his proctor, question-reader, and scribe for his third MCAS attempt. His score on both the Math and the ELA MCAS improved by 10 points to a passing grade. Student testified at the hearing that during the ELA MCAS, the scribe "made the story better" a couple of times, and during the Math MCAS, the scribe helped rearrange some of the problems. The Hearing Officer noted that the burden was on the Parents to demonstrate that Student's performance with invalid. The proctor testified that she did not "improve" upon his answers during the exam, and this testimony was corroborated by other witnesses. The Hearing Officer concluded that the extensive test preparations and practice tests, the number and scope of legitimate accommodations, and the Student's memory issues all led to the conclusion that Student was confusing events during test preparation with those of the actual examination.

In June of Student's senior year, the Parents requested that he be placed at Chapel Haven, a private residential program in Connecticut for young adults with cognitive and developmental disabilities. When Marlborough refused, Parents unilaterally placed him there.

One of Parents' claims was that the transitional planning for the Student was inadequate. However, several factors undercut this unpersuasive argument. Parents had accepted IEPs for Student's 11th and 12th grades and were therefore precluded from claiming the transition services incorporated therein were inadequate. The Hearing Officer also found that the transition services met the FAPE standard: Student had met with a career counselor once per week, attended Career Education Classes four times per week, and completed a year-long program of exploring vocationally related abilities, skills, and interests. The Student was also employed during most or all of his junior and senior years. The Hearing Officer found that the Student arrived at Chapel Haven with "strong life skills."

However, the Hearing Officer found that Student's continued struggles with emotional control and poor learning-center attendance resulted in his failure to meet his behavioral and some of his academic goals by the time he was to graduate. Although failure to meet IEP goals is not per se grounds for invalidating a diploma, in this instance Student still required a significant amount of specialized services and support in many areas, such as executive functioning, time management, and navigation of social situations. These factors "tipped the balance" in favor of a determination that the Student should not have been graduated and that he was entitled to continued eligibility for special-education services.

In determining appropriate relief, the Hearing Officer declined to order reimbursement or prospective funding for the residential program at Chapel Haven. Because reimbursement is a matter of balancing equities, the Hearing Officer found that the Chapel Haven program was not closely comparable to the Dearborn program, and that it would be "fundamentally" inequitable to order reimbursement for a placement that far exceeded the standards of eligibility and appropriate services that constitute this Student's FAPE obligations. The Hearing Officer therefore ordered the school district to reconvene the Team to determine the appropriate level of continued services for the Student.

We think this result is unfortunate and that the Hearing Officer should have applied a "reasonableness standard" to the Parents' unilateral placement. It is well established that once it has been determined that a school district's proposed program fails to provide FAPE, the Parents are entitled to reimbursement for a unilateral placement as long as their program, while not perfect, is capable of providing the student with FAPE. Matthew J. v. Mass. Dept. of Education, 989 F. Supp. at 387, 27 IDELR 339 at 343-344 (1998), citing Florence County School District Four v. Carter, 510 US 7, 13 (1993); Doe v. West Boylston School Committee, 28 IDELR 1182 (D. Mass., 1998); Gill-Montague RSD, 7 MSER 194 (2001). Under such a circumstance, a parent may be reimbursed for the costs of unilateral placement if that placement is "appropriately responsive to [a student's] special needs"-- i.e., so that the Student can benefit educationally. Matthew J., 27 IDELR at 344. In this situation, the school district offered no program or services at all to the Student, not even inadequate ones, even though he continued to have significant needs. In light of these needs and the school district's failure to offer any services at all, it was more than reasonable for Parents to unilaterally enroll him child in Chapel Haven. If the Hearing Officer believed that the unilateral placement offered too much above and beyond what the school district should have offered, then the Hearing Officer should have ordered reimbursement up to the point that the district could offer an adequate program to the Student.

A "Never Darken My Door Again" deal is a deal

A second transition case, Peabody Public Schools, 15 MSER 154 (2009), involved the enforceability of an agreement in which the school district agreed to fund a residential placement for a specified period of time in exchange for an end date beyond which it would no longer be obligated to provide or fund special-education services. The matter was decided on a motion to dismiss brought by Peabody. The Parents claimed that Peabody failed to assess the Student or provide appropriate transition planning or services. The parties' agreement was made during a BSEA settlement conference and provided in relevant clauses that it was made in full settlement of all claims for special-education services and that the district would have no further fiscal or programmatic responsibility for the Student after July 1, 2009. The only exception would be if there was a substantial or material change in the Student's special-education needs. No such condition was found to have arisen. The Hearing Officer upheld the end date for special-education services, because the agreement's language is clear and unambiguous, and to hold otherwise would undermine the integrity and efficacy of the settlement process, especially one resulting from a BSEA settlement conference.

The essential elements of a claim for outside placement

The principle that effective progress is to be judged in light of a Student's potential was the central issue in Parent's successful claim for funding an outside placement in Cohasset Public Schools, 15 MSER 160 (2009). The Student was 17 years old and had recently completed the 11th grade at Cohasset High School. She had average to above-average intelligence and dyslexia and a significant reading disorder, as well as difficulties with executive-functioning processes. The disputed IEP covered the end of her 11th-grade and majority of her 12th-grade years, and was essentially the same as the ones provided in her previous two academic years. The Parents sought funding for the Student's placement at the Landmark School.

The key evaluation was an independent multidisciplinary evaluation conducted by Franciscan's Children's Hospital and funded by Cohasset. The Hearing Officer focused on the Student's reading disability and noted that the "essential issue is whether a continuation of the rate of progress over the past two years in reading is sufficient." Id. at 165.

Cohasset personnel testified that the Student did make progress over the course of her 10th- and 11th-grade years and that she had received good grades. Concerning the often-cited factor of "good grades" as proof of effective progress, the Hearing Officer stated that "grades and other indicia of academic progress are not necessarily dispositive." Id. at 169. This Student's grades were indeed irrelevant in the context of her greatest deficit, reading, because she was given books, including textbooks, on tape and her aide provided specific language that Student used in her papers.

The central thesis of the Franciscan's evaluation was that the Student had significant deficits and had the potential to make substantially greater educational gains if she were accorded more-comprehensive and more-intensive special-education services.

Two significant factors in this case should be noted. First, the fact that the Student was entering 12th grade undercut the claim that the district's program could simply be beefed up with additional services. The Hearing Officer noted that while this argument might have been persuasive if Student were a few years younger, there was little time to address her significant deficits at this point. Second, Franciscan's education evaluator had not observed Student in Cohasset's program or spoken with Cohasset staff. Noting that the Franciscan's opinion would have been stronger if they had, the Hearing Officer found that this failure was not significant enough to discredit the Franciscan's evaluation, reasoning that the evaluator understood the current and proposed services and could determine the efficacy of those services based upon Student's past performance with those services in place.

In Boston Public Schools, 15 MSER 145 (2009) the school district prevailed in a claim for unilateral placement at the Carroll School. At the time of the hearing, the Student was an eighth-grader who had high-average to superior cognitive abilities as well as ADHD and a language-based learning disability. In August 2003, the Parents had unilaterally placed Student at the Carroll School in Lincoln. While in the Boston Public School's Mary Lyon School the Student progressed a year in reading level in the course of a year and showed other signs of steady, significant progress. While enrolled at Carroll, Boston continued to offer comprehensive IEPs at the Mary Lyon School, such that, in essence, Parents rejected only the placement portion of those IEPs.

Dooming the Parents' case were several factors. First, while at the Mary Lyon School, the Student had made sufficient progress. Second, there was no evidence offered that Boston's 2006-2007 IEP was inappropriate; it continued a program within which the Student had made sufficient progress. Third, concerning Boston's 2007-2008 IEP, little or no new information had been provided the Team, including any reports from Carroll, and no Carroll personnel attended the Team meetings, despite being invited; the Parents accepted all components of the IEP except its implementation at the Mary Lyon School. Fourth, no expert evaluations indicated that Student's disability could not be addressed in a public-school setting. Fifth, for the 2008-2009 IEP, Boston's program fit the criteria recommended by Carroll, and there was no evidence that Boston would provide less support than the Student would receive at Carroll.

Joinder of a state agency

Fall River sought to join the Department of Mental Health ("DMH") in Fall River Public Schools, 15 MSER 152 (2009). The 15-year-old Student, who had ADHD, oppositional/defiant disorder, and bipolar disorder, had been receiving extensive DMH services since 2001. At the time of the motion, the Student was "stuck" in an inappropriate and potentially harmful placement because DMH and Fall River were arguing over who would fund a residential placement for the Student. Fall River took the position that the Student did not need a residential placement for "educational" reasons, and therefore the responsibility for the residential portion, if it was necessary, should rest with DMH. The Hearing Officer held that it was impossible without a hearing to determine whether DMH bore any responsibility for Student's next placement or that he even required a residential placement. However, because of the threat of the Student's remaining "stuck," it was imperative that all the issues be resolved in a single evidentiary hearing, and the hearing Officer therefore joined DMH. The Parents, who were pro se, opposed the joinder because they felt Fall River should bear all the responsibility for the placement. That is a curious position for the Parents to take. Our typical advice to Parents is to push the school district to provide comprehensive services, but welcome services and funding from any source.

A parent can seek reimbursement for a unilateral placement even if the child had not been receiving special-education services

Two decisions, one from the BSEA and the other from the U. S. Supreme Court, effectively undercut what many considered to be the precedent of Greenland School District v. Amy N., 358 F.3d 150 (1st Cir. 2004)--that if a student was not receiving special-education services from a district, the parents could not seek reimbursement for a unilateral placement.

The BSEA action in Natick Public Schools [1] , 15 MSER 105 (2009), involved a ruling on a motion to dismiss brought by Natick in response to the Parents' hearing request seeking reimbursement for unilateral placement of their son in two private programs. Natick moved for dismissal on two grounds: first, since the Student was not eligible for special-education services when Parents unilaterally placed him, they were not eligible for reimbursement, and second, because the requisite 10-day notice prior to the unilateral placement was not provided to Natick.

The Student, who at the time of the decision was 18 years old, was first found eligible for special-education services in 2000, at the end of his fourth-grade year. In February 2007, Natick's Team determined that the Student was no longer eligible for special-education services or a Section 504 plan. Parents disagreed and became increasingly concerned about their son's needs as the academic year progressed. On June 11, 2007, they notified Natick that they were unilaterally placing their son in the Adirondack Leadership Expedition Program in Saranac, New York, a therapeutic residential program, as of June 19, 2007. In a September 4, 2007 letter, the Parents informed Natick of their unilateral placement of their son as of September 5, 2009 at Island View Academy and Residential Treatment Center in Utah.

Concerning the first grounds for its motion, Natick argued that the IDEA (specifically 20 USC 1412(a)(10)(C)(ii)) precludes reimbursement because it provides that reimbursement is available to a child "who previously received special education and related services under the authority of a public agency." Natick argued that this precluded reimbursement here because the Student was not receiving special-education services when he was unilaterally placed. Natick also relied on Greenland, where the Parents had unilaterally placed their child before even raising the issue of special-education services with the school district. The Hearing Officer held that neither IDEA nor Greenland barred reimbursement. The family and Natick had a long history of working together to address the Student's special needs and Natick was well aware of the Parents' concerns about their son's disabilities and need for special-education services.

Concerning the second argument, the Hearing Officer noted that the 10-day-notice statute, as well as decisions interpreting it, clearly accord a Hearing Officer discretion in determining whether failure to give requisite notice should bar or reduce any reimbursement. In exercising that discretion, the equities must be balanced. In applying balance to the principle oft-cited on behalf of school districts who fail to adhere to IDEA procedures, the Hearing Officer examined whether the failure to give the requisite 10-day notice had resulted in any educational harm. The matter of harm, as well as whether longer notice would have resulted in serious emotional harm to the Student, were questions of fact to be determined at a full hearing. The undisputed failure to provide the full 10-day notice, however, by itself would not bar a claim for reimbursement.

Because of a disagreement among Federal Circuit Courts of Appeal over whether a Parent can get reimbursement for a unilateral placement only if their child had previously received public special-education services, the U. S. Supreme Court recently resolved this issue in Forest Grove School District v. T. A., 129 S.Ct. 2484 (June 22, 2009). During his freshmen year in public high school, the Student's Parents became concerned about his academic struggles. The Student was evaluated by the school psychologist, and as a result the school district found the Student ineligible for special-education services. With extensive help from his family, the Student completed his sophomore year, but his problems worsened in his junior year. A private specialist diagnosed the Student with ADHD in March of his junior year and advised the Parents that he required a structured, residential learning environment. Parents thereafter enrolled him in such a program. Subsequently they filed a hearing request seeking reimbursement and funding going forward. The school district conducted a further evaluation of the Student and concluded that he was not eligible for special-education services because his ADHD did not have a sufficiently adverse impact on his educational performance. The school district maintained that IDEA barred reimbursement because of the section of the IDEA, 20 USC 1412(a)(10)(C)(ii), which provides that reimbursement may be available to a child "who previously received special education and related services under the authority of a public agency".

The Justices definitively held that the IDEA does not bar reimbursement for a unilateral placement solely because the child had not previously received special-education services. The Court noted that the express purpose of IDEA is to "ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs." 20 USC 1400(d)(1)(A). The Court chastised those who would think otherwise, noting that Parents must have a remedy available to them in the face of a school district's failure to identify a child with disabilities. "Indeed, by immunizing a school district's refusal to find a child eligible for special-education services no matter how compelling the child's need, the School District's interpretation of Section 1412(a)(10)(C) would produce a rule bordering on the irrational. It would be particularly strange for the Act [IDEA] to provide a remedy, as all agree it does, when a school district offers a child inadequate special-education services but to leave Parents without relief in the more egregious situation in which the school district unreasonably denies a child access to such services altogether." Id. at 2488.

The Supreme Court also summarily dismissed the doomsday argument of school districts that this would open floodgates of Parents immediately enrolling children in private special-education schools without first endeavoring to cooperate with the school districts. The Court took note of the realities of the significant hurdles facing Parents in seeking funding for unilateral placements and the fact that the incidence of private-school placement at public expense is quite small.

The BSEA monitors compliance with its decisions

Norwood Public Schools, 15 MSER 135 (2009), demonstrates that the BSEA is available to determine whether a school district has complied with its earlier decision. In the earlier decision here, Norwood Public Schools, 14 MSER 210 (2008), the Hearing Officer found that Norwood's program would provide FAPE if it took some additional steps, including re-evaluating the Student and making a new proposal for home services. Compliance with that aspect of the earlier decision was the sole basis for the Parents' hearing request. It was undisputed that the Student continued to exhibit behavioral difficulties at home and the Hearing Officer found that Norwood's home-based services had not yet been effective in addressing them. That, however, did not end the analysis. Concerning compliance, Norwood made efforts with qualified personnel to evaluate and provide home services. The Hearing Officer held that Norwood had complied with the earlier decision in that its efforts to reevaluate and implement home-based services were reasonably calculated to be effective.

The school district in Medford Public Schools, 15 MSER 129 (2009), filed a hearing request seeking permission to place Student in Curtis Tufts Alternative High School. The Parents sought to have their daughter remain at Medford's Adaptive Learning Program ("ALP"). Student, who had been diagnosed with ADHD and PTSD, had attended the ALP program for two years. The Student had emotional and behavioral incidents almost weekly, significantly interfering with her education because it typically resulted in her leaving the class and not returning for the remainder of the day. In addition, the Student received a number of suspensions. Medford personnel testified that her conduct was unsafe. The evidence presented demonstrated that Curtis Tufts was more closely structured and more highly supervised and could address behavioral incidents more quickly and spontaneously than ALP. The Parents, who were pro se and did not present any expert testimony, could not dispute that the Student was struggling in the ALP program. It was true that Curtis Tufts was more restrictive than ALP; but ALP was not appropriate for the Student and was not providing her the means to make effective progress. Demonstrating yet again that Hearing Officers are not constrained in ordering relief to pick either the Parent or the-school district option, here the Hearing Officer ordered the Curtis Tufts placement but with additional services and opportunities, such as providing the Student with an opportunity to play a team sport, managing the transition to Curtis Tufts closely, and considering providing family therapy.

Conclusion