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, 2006, by Daniel T.S. Heffernan
When can a state agency, such as DMH, be brought into a BSEA proceeding? What is the BSEA's authority to monitor and enforce implementation of its orders? Can "bullying" be a factor in denying a free and appropriate public education ("FAPE")? Can Section 504 require a high-powered exam school to override its policy concerning the re-admission of a student? These are among the issues addressed in this quarter's decisions. In addition, these decisions give us further insight into the factors typically considered by Hearing Officers in assessing credibility of witnesses and determining whether FAPE requires placement outside the public-school program. They also demonstrate that Hearing Officers are not limited to "either/or" choices in their decisions—they are free to fashion a remedy modifying any of the alternatives presented to them.
Join the party
BSEA Rule 1J permits a BSEA Hearing Officer to join another public agency to a proceeding involving a student and school district when complete relief cannot be fashioned without that agency. To join that agency, the moving party must demonstrate, in at least a "preliminary way," that it can present evidence that may result in the agency's being responsible to offer some service to enable the student to access FAPE. If joined, the agency may be ordered to provide only those services consistent with its rules, regulations, and policies. Included in that consideration is whether the student is or would be eligible for services from the agency. The policy behind this authority to join another agency is a common-sense one that seeks to encourage efficiency and is consistent with the ideal of a "team" approach to the IEP process. It is also consistent with the advice given to families of students with special needs: gather all those with resources and expertise around the table to decide on, and provide, the appropriate services for a student. However, four decisions issued this quarter demonstrate that the BSEA construes this rule narrowly and that parents should look primarily to the school district as the entity responsible for providing FAPE.
In Ralph C. Mahar Regional School District, BSEA #06-1342, 12 MSER 178 (2006), the parents filed a hearing request seeking rescission of a high-school diploma awarded to Student in June 2005, claiming that because the school district had failed to provide appropriate transition services, it owed her compensatory special-education services. The school district sought to add the Department of Mental Retardation ("DMR") and the Massachusetts Rehabilitation Commission ("MRC"). The student had been found eligible for both DMR and MRC services, although she was not receiving any services from either agency at the time of the BSEA proceeding. The school district sought to join both agencies because they would possibly provide, in whole or in part, those transition services that the parent claimed were owed to the student. However, the Hearing Officer refused to join DMR and MRC because the relief requested by the parents, rescission of the high-school diploma, was solely within the responsibility of the school district. Therefore, since DMR and MRC have no connection to the school district's determination of whether the student met the standards for graduation, the motion to join those agencies was denied.
In Whitman-Hanson Regional School District, BSEA #07-0623, 12 MSER 267 (2006), the school district sought to join the Department of Social Services ("DSS") and the parents sought to join the Department of Mental Health ("DMH") in a proceeding where parents sought a residential placement for their 14-year-old child with cognitive, language, social/emotional, and psychiatric disabilities. The student had been receiving services from DMH for years. The family had briefly received services from DSS years earlier and was, at the time of the hearing, in the process of reapplying for voluntary services. The Hearing Officer held that on the record before her, no service or unique placement under DMH's control that could contribute to an appropriate residential special-education program had been identified. Therefore, DMH was not a "necessary" party to the proceeding. And since DSS had no current connection to the family, and therefore no relevant information to share with the parties or programs or services to offer, it could not be joined.
Two cases involving Boston Public Schools ("BPS") reiterate that the prerequisite for joinder of a public entity in a BSEA proceeding is student eligibility for the agency's services. In Boston Public Schools, BSEA #06-6542, 12 MSER 203, the student had a number of diagnoses, including several mental illnesses such as psychotic disorder and bipolar disorder. The student had 10 psychiatric hospitalizations, the most recent one for three months. In the BSEA proceeding, the parent sought placement in a therapeutic residential program and BPS sought joinder of DMH to help fund such a placement if parents prevailed. Parents' application for DMH services was denied on two occasions, and the parent was pursuing appeals of the later denial. Under DMH regulations, the parent still had three more levels of appeals available before exhausting DMH's administrative remedies. The Hearing Officer denied the motion to join DMH because the student had not been determined eligible for such services, even though she found it "puzzling" that DMH had found student ineligible. Still, the Hearing Officer held that she did not have authority to interfere in the preliminary question of eligibility. However, the Hearing Officer went beyond the sole issue before her at that point in the proceedings, BPS's motion to join DMH, to "clarify" BPS's responsibilities toward this student in crisis. She reminded BPS that residential placement is certainly within the array of services for which a school district is responsible if such a placement is considered necessary for a student to receive FAPE. In that instance, it is well established that BPS would be solely responsible for that placement. In the case at hand, the Hearing Officer noted that should the evidence at hearing support a finding that student requires an educational residential placement, BPS may be found eligible for funding that placement.
The same Hearing Officer had another opportunity to decide on joinder of DMH in a proceeding with BPS in Boston Public Schools, BSEA #06-5402, 12 MSER 209 (2006). DMH had found the student eligible for services but opposed joinder in the BSEA proceeding where the parents sought a residential placement, maintaining that if the student needed a residential placement, it was for "educational" reasons and therefore not DMH's responsibility. DMH was joined in the proceeding because it might be held responsible for the residential portion of a placement or might be responsible for providing other services to the student. Given the student's profile and his DMH eligibility, DMH was considered a necessary party.
Components of a successful challenge to the school's program
A number of decisions reiterate the well-established factors necessary in mounting a challenge to the program offered by the school district. When a parent lacks these components, the handwriting dooming the parents' claims is on the wall well before it is in the Hearing Officer's decision. These cases, discussed in depth below, illustrate the importance of the following factors:
Parents' expert needs to have first-hand, current knowledge of and provide effective testimony supporting the parents' position
In North Adams Public Schools, BSEA #06-4948, 12 MSER 238 (2006), the Hearing Officer gave "no weight" to the opinion of the parents' expert because that expert's opinion was based entirely on parents' reporting to the expert, as opposed to any direct testing or observation. In Groton-Dunstable Regional School District, BSEA #06-4695, 12 MSER 233 (2006), one of parents' expert's opinion was given "little weight" because he did not have knowledge of the student's current functioning or IEP (and the parents' other expert's testimony contradicted her written report). In Dracut Public Schools, BSEA #07-0155, 12 MSER 242 (2006), the parents' main evaluator did not testify at the hearing and the parents relied solely on her written report. The Hearing Officer commented that this failure to testify did not afford an in-depth examination of the expert's opinions, and did not allow her the opportunity to comment on new information elicited at the hearing detailing the proposed program for the student. The parents' primary expert in Everett Public Schools, BSEA #06-2597, 12 MSER 180 (2006), had not spoken to student's teachers and had not seen the student's public-school program or the proposed IEP. The expert further undermined the parents' claim when the expert, after being shown the proposed IEP at the hearing, testified that it was appropriate.
Failure to participate in the hearing
In Marshfield Public Schools , BSEA #06-4949, 12 MSER 218 (206), the parents did not participate in the hearing and lost. In Wakefield Public Schools, BSEA #06-5946, 12 MSER 171 (2006), the parents' attorney withdrew prior to the hearing, the parents did not attend the hearing, and they failed to submit a written closing argument.
Extended-year services
The parents in North Adams Public Schools, BSEA #06-4948, 12 MSER 238 (2006), sought to maintain the level of speech/language services offered in the summer program. The Hearing Officer found that the parents did not satisfy their burden under Massachusetts' law—that the services were necessary to prevent "substantial regression." The best evidence of the potential for substantial regression is evidence of past regression without the desired services. In this case, the parents' report of such regression was not corroborated by any objective evidence. The testimony of their expert in support of the summer services was given "no weight" by the Hearing Officer because it was based entirely on parents' report, and not on any testing or observation by the expert. In addition, the student's rapid progress, the stated justification for reducing the summer services, was evidenced by the adjustment upward of her IEP goals every few months.
Reasonable accommodations are required even at a high-powered exam school
Two decisions involving the same student at Boston Latin School demonstrate that even such schools must offer reasonable accommodations to students with disabilities. In Boston Public Schools, BSEA #06-6508, 12 MSER 221 (2006), a student needed to withdraw on two occasions from Boston Latin School because of the physical and emotional impacts of his Crohn's disease. After undergoing extensive treatment and, according to his physicians, settling on a medical regimen that enabled him to manage the disease, a 504 Plan was developed for him while in another Boston Public School ("BPS") program. He sought readmission to Boston Latin, but was denied because of its policy of refusing to readmit a student who had withdrawn twice. In her affidavit, the headmaster claimed that after consultation and research, "it was determined that waiver of this policy would compromise the academic standards and integrity of a high school diploma from the Boston Latin School ." In ruling on the parents' motion for partial summary judgment, the Hearing Officer held that BPS shall exempt the student from BPS's policy regarding readmission. In doing so, the Hearing Officer found no support for the claimed detriment to the standards of Boston Latin or to the integrity of the high-school diplomas it issues. Although such opinions are given "deference," none is merited where the affidavit is lacking in factual support and is little more than a conclusory statement of opinion. There was nothing apparent in the accommodation that would alter the academic standards or integrity of Boston Latin, and no substantial burden would be visited on Boston Latin through this accommodation.
BPS sought reconsideration of the Hearing Officer's decision in Boston Public Schools, 12 MSER 248 (2006), with the submission of a longer affidavit from Boston Latin's headmaster. That second affidavit simply reiterated the purported detriment that the accommodation would have on Boston Latin's standards, and added that there was no available space in the class. To add another student "could" violate the class-size provisions of the agreement with the teachers' union. Procedurally, the Hearing Officer noted that BPS could offer no legitimate rationale for why the fuller affidavit was not submitted in the earlier proceeding. Putting that aside and considering the second affidavit, the Hearing Officer noted that it still failed to provide any support for the conclusory statement about detrimental impact. Concerning the space issue, again the headmaster said nothing more than it "could" cause difficulties. In addition, any hardship to Boston Latin was due to its decision not to provide the requested accommodation to the student.
Bullying is a legitimate issue in FAPE, but it needs to be proven
There has been increasing attention paid to the issue of bullying in schools. That issue is of particular importance in special education, since children with disabilities are, as a group, more vulnerable to bullying. The Hearing Officer in Wakefield Public Schools, BSEA #06-5946, 12 MSER 171 (2006) (and the Hearing Officer in Dracut, discussed below), recognized that bullying which undermines the safety of a student could lead to a denial of FAPE. In an attempt to get their child moved to a different school within the district and away from a purported bully, the parents in this case withdrew their consent to special-education services. In response, the school district filed the hearing request. Wakefield met its burden under Schaffer v. Weast, 126 S.Ct. 528 (2005), that its IEP provided FAPE. The parents failed to meet their burden about the bullying issue. There was no corroborating evidence of the bullying, and a state court judge had denied the family' s petition for a restraining order against the alleged bully. In addition, as discussed above, the parents' counsel withdrew prior to the hearing and the parents did not attend the hearing. Wakefield sought an order from the Hearing Officer overriding the parents' lack of consent to the IEP and special-education services. While recognizing the appropriateness, and necessity, of the special-education services offered by Wakefield, the Hearing Officer lacked the authority to override a parent's lack of consent. MGL c.71B, §3 provides that state superior court has the authority to make such an order.
The BSEA does have the authority to monitor implementation of its orders
The parents in Hanover Public Schools, BSEA #06-1157C, 12 MSER 168 (2006), filed this claim that Hanover had failed to implement the Hearing Officer's prior decision (12 MSER 77 (2006). As relief, the parents sought the continued funding of their son's placement at the Carroll School, in Lincoln . The prior BSEA order called for Hanover to write a new IEP for the student, providing certain services such as tutoring by a specialist trained in Orton-Gillingham methodology. When that IEP was presented to the parents, the district's obligation to fund placement at the Carroll School would cease. The parents claimed the tutor offered was not properly trained because she did not have the same training as Orton-Gillingham tutors at Massachusetts General Hospital 's program or those at the Carroll School . Although there was a difference in the training between Hanover 's tutor and those at other institutions, the Hearing Officer found that the district's tutor had received sufficient training and the district could provide more if necessary. Hanover was out of compliance with the prior order for daily tutoring when it sought to provide the same total amount of tutoring but delivered in longer sessions three times per week. The Hearing Officer held that to constitute noncompliance and ordered Hanover to begin providing such tutoring each day. Overall, despite the failure to provide tutoring on a daily basis, the Hearing Officer found that Hanover had complied sufficiently with the BSEA's prior order, and its obligation to fund the Carroll School placement ceased when it delivered the amended IEP.
In Everett Public Schools, BSEA #06-2597, 12 MSER 180 (2006), the parents sought public-school funding for placement at the Landmark School, a private school for children with learning disabilities in Pride's Crossing. In her extensive decision, the Hearing Officer found that Everett had failed to fully implement a prior accepted IEP, committed certain procedural errors, and was sloppy in writing the IEP. In addition, Everett improperly denied the student the opportunity to participate in honors classes, and the student did not make effective progress in meeting some goals. Last, Everett had improperly determined that the student was ineligible for services for approximately six months. Despite these numerous deficiencies, the Hearing Officer denied the parents' request for funding for Landmark and instead ordered compensatory services and modifications to the proposed IEP, including allowing the student to participate in honors classes. Although the Hearing Officer denied the requested relief, she acknowledged that a school district's track record can undermine confidence that it will or can implement a proposed plan. We applaud the Hearing Officer's acknowledgement of the importance of this factor. When a school district has proposed an IEP that is appropriate on its face, it still may be held inappropriate when the district's prior actions demonstrate that it has neither the will nor the ability to implement an appropriate IEP. Here, Everett showed "good intent" and had attempted to correct errors on the previous IEP. Some of the errors were also de minimis and were therefore not "outcome-determinative"— they did not amount to a denial of FAPE. For example, the parents claimed that the IEP was not legitimate because teachers failed to stay for the entire Team meeting and therefore a real Team meeting did not occur. This was discounted because the Team meeting in question lasted several hours and it was reasonable that some members might need to step in and out. As discussed above, the parents' claim was seriously undercut by their failure to present effective expert testimony supporting their case for an outside placement. The parent's main expert had not spoken to student's teachers and had not seen the student's public-school program or proposed IEP. In what was probably the fatal blow to the parents' claim, when their expert was shown the proposed IEP at the hearing, the expert said it was appropriate and an outside placement was unnecessary.
Since the student in Groton-Dunstable Regional School District, BSEA #06-4695, 12 MSER 233 (2006), was making meaningful progress, the Hearing Officer refused to order funding of the student's placement at the Carroll School. The parents, either simply out of frustration with the school district or as a tactic, rejected an IEP for the student that would have provided her with increased services. As a tactic, it is ill-advised, for parents should accept appropriate services when offered, even if more or different services are sought. The Hearing Officer took pains to note that the student made effective progress, even without the benefit of the increased services the school district had offered. The parents' expert conceded that the student was making progress in the public-school program, but asserted her belief that the student would make more rapid progress at Carroll. This decision serves as yet another reiteration of the standard for public funding of an outside placement—simply because the outside placement may be better for the student, the school district is not obligated to fund it unless the public-school program is inadequate and the student is not making effective progress.
Funding for Carroll was also denied for the 10-year-old rising fifth grader in Dracut Public Schools, BSEA #07-0155, 12 MSER 242 (2006). The parents were held to have overstated the student's deficits and reading delays by focusing only on a subtest or two of an evaluation. In the proposed IEP, Dracut substantially increased the services it was offering the student. The parents also claimed the student was victimized by bullies at school. As in Wakefield (discussed above), the Hearing Officer acknowledged this was an important component of FAPE, but found no evidence of it. Concerning this factor, the school district was to monitor this more closely in the future. No expert testified for the parents at the hearing, and therefore a more "in-depth examination" of their opinions was not possible. More specifically, those experts could not respond when Dracut provided further details and clarifications of its program at the hearing. In addition, one expert's report and recommendation were developed without the expert having the previous year's record for the student.
Procedural violations and other factors caused a denial of FAPE
The parents in Sharon Public Schools, BSEA #06-1557, 12 MSER 252 (2006), unilaterally placed their son as a residential student at Hillside School, a private special-education school, to address their son's learning disabilities and mental-health needs. Two significant procedural violations occurred which, in their totality, caused a denial of FAPE to the student. First, the school district failed to fully implement the accepted IEP for the student's sixth grade. Second, after the parents' expert submitted a report to the school district, the Team failed to reconvene to determine if any changes were necessary to the IEP. Because this reconvened Team should have provided different services in response to the expert's evaluation, this was a procedural violation that substantively impacted the provision of FAPE. Sharon was ordered to reimburse the parents for the sixth-grade Hillside School program. This reimbursement, however, was limited to the sixth-grade day-program portion, for two reasons. First, the parents did not submit testimony about the specific residential program at Hillside, and their expert testified only that people with the student's disability generally require a residential program "at some point" and, second, the seventh-grade IEP was held to be appropriate. One additional significant aspect to this decision concerns the requirement, pursuant to 20 USC §1412(a)(10)(C)(iii)(I),(aa) and (bb), that parents give notice to the school district before such a unilateral placement to preserve their rights to seek reimbursement. The parents failed to give the requisite notice, instead providing notice of the placement in a letter the same day the student began at Hillside . None of the recognized exceptions, such as illiteracy of the parents or threat of serious emotional or physical harm if such notice is given, was present. The Hearing Officer held, however, that reduction or denial of reimbursement is an equitable remedy within the Hearing Officer's discretion. Here, since the Hearing Officer believed that notice would still not have resulted in an appropriate IEP for the student, parents' failure to give notice was not outcome-determinative and did not bar their claim for reimbursement.
The school district in South Hadley Public Schools, BSEA #06-3954, 12 MSER 211 (2006), defended its inclusion-model IEP for a student with learning disabilities. However, in response to the parents' seeking funding for placement at Curtis Blake School, a private school for students with learning disabilities, the school district offered an alternative to its inclusion model—a language-based learning-disability classroom within the district. The Hearing Officer found that the inclusion model did not offer FAPE because the student's history clearly demonstrated that he needed more intensive services. The language-based classroom was appropriate because it was less restrictive than Curtis Blake—50 percent of the students were not learning-disabled children, and student benefited from being included with non-disabled peers. In addition, when the parents' expert was given details at the hearing of the school district's language-based learning-disability program, he said it would be appropriate.
In Marshfield Public Schools, BSEA #06-4949, 12 MSER 218 (2006), the student, who had serious learning and emotional disabilities, was left without a placement when Marshfield's alternative high school ("MAHS") was closed by the state Department of Education. The parents wanted the student to return to Marshfield High School . Marshfield asserted that it could not service him at the high school, and proposed an eight-week extended evaluation at an outside day school to help determine the appropriate out-of-district placement. The parents, as described above, did not attend the hearing. The Hearing Officer held that the student, who had missed 21 of the 51 days of MAHS that year, could not meaningfully participate in Marshfield High School, and he therefore upheld the school district's proposal. In addition, the Hearing Officer ordered Marshfield to conduct neuropsychological and psycho-educational evaluations of the student.
Miscellaneous
In Mount Greylock Regional School District, BSEA #06-6459, 12 MSER 177 (2006), a school district was held to have lost its right to insist that BSEA proceedings be suspended until a resolution session is held, when the school district failed to convene the resolution session within 15 days.
The consequence of a parents' repeated refusal to comply with a Hearing Officer's order to have their child submit to an evaluation by the school district was dismissal with prejudice of the parent's hearing request in Hampden-Wilbraham Regional School District, BSEA 05-4878, 12 MSER 200 (2006). We applaud the Hearing Officer's restraint in not precipitously dismissing the case and thereby allowing the sins of the parents to be visited on the student. However, in this "egregious" case, not only did the family refuse to produce their child for evaluation, but they attempted to intimidate the school district's evaluator by having a clinician call and threaten to report the evaluator to the ethics board.
The Hearing Officer in Melrose Public Schools, BSEA #06-5261, 12 MSER 167 (2006), considered the question of when is an attorney not an attorney and therefore permitted to participate in a resolution meeting. Here, the attorney/special-education administrator had not practiced law for years and had held several special-education administrative positions; the attorney/administrator appeared at the resolution meeting in no way representing the school district. In fact, a different attorney had filed an appearance on the district's behalf in the BSEA proceeding.
Conclusion
With these decisions, the BSEA Hearing Officers have provided further guidance in areas involving the joinder of state agencies, the importance of giving students with disabilities access to high-powered public schools and honors classes, and how "bullying" can deny FAPE. Throughout all their decisions, the Hearing Officers have reinforced the obligation of school districts to provide a high quality of services to students with special needs in order to satisfy the requirements of FAPE.
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
Voice: 617-227-7031
Facsimile: 617-367-2988
Email: