Pittsfield Public Schools and Central Berkshire Regional School District, BSEA #08-4603, 14 MSER 315(2008), involved an 11-year-old Student with a language-based learning disability who was unilaterally placed by her Parents at the White Oak School in February 2008, in the middle of her fifth-grade year. The school district offered an inclusion program with pullouts, arguing that the Student had made effective progress in such programs over the years. The Parents had an independent evaluation done by a McLean Hospital team which concluded that the Student’s needs were severe enough to require placement in a self-contained program and that the Student had failed to make effective progress in and was very stressed by the inclusion program she had been attending. 

The Hearing Officer conducted an extensive and detailed analysis of all of the evidence and found the school district’s presentation to be full of contradictions and ultimately not as credible as the Parents’ case. For example, the Student’s progress reports consistently reflected the fact that she was not meeting her goals in reading. Also, the report of the school psychologist relied upon by the school district was very clear in noting that the Student had significant weaknesses in basic reading, fluency, math, and spelling, and recommended services that seemed beyond what could be provided in an inclusion classroom. Also, the Hearing Officer noted that the school-district employees who had written reports in support of the Parents’ case were not called by the district as witnesses. In summary, there was too much evidence that the Student was struggling academically and emotionally in the inclusion program for the school district to be able to show that she was making effective progress.

The Hearing Officer ordered reimbursement to the Parents for the school year at issue. The Parents had also requested an order requiring the school district to write an IEP for placement at the White Oak School for the following school year. The Hearing Officer declined to do so because the IEP at issue at the hearing had expired in May of the last school year and no IEP had yet been developed for the next school year, nor had any evidence been offered at the hearing about such school year. Therefore, the Hearing Officer determined that it would be premature to issue an order for that school year. As a practical matter, once the Hearing Officer agreed with the Parents about the placement at White Oak, the Student could continue there with public funding since White Oak became the “stay put” placement.

Because the Student was attending the Pittsfield Public Schools as a “school choice” Student, financial responsibility for the placement at White Oak was shifted to the Central Berkshire Regional School District, where the Student resided, pursuant to 603 CMR 28.10(6)(b). While Central Berkshire did not appear to challenge this automatic shift of financial responsibility, there is some question about whether section 28.10(6)(b) applies in the case of a unilateral placement, such as the one the Parents made to the White Oak School in this case.

Parents meet their burden of proof for an outside placement retroactively but not prospectively

Pentucket Regional School District,BSEA #08-5616, 14 MSER 386 (2008), is an example of how a school district may try to “cut its losses” by adapting its program to the recommendations of the Parents’ independent evaluator. In this case, the school district decided that an 11-year-old girl with dyslexia, executive-function and attention issues had benefitted so much from being in a self-contained classroom for third grade that she could be placed in a co-taught regular-education program with pullouts for fourth grade. The Parents had independent testing done and disagreed with the school district’s placement for fourth grade. Instead, they made a unilateral placement at the Landmark School for the summer after third grade and for fourth grade. The Parents informed the school district of the findings and recommendations of their evaluator at the Team meeting immediately preceding the unilateral placement, though they did not receive the actual evaluation report until the middle of the school year. The Team reconvened and offered an IEP that spanned fourth and fifth grades. This IEP proposed that the Student be placed, for the remainder of the fourth-grade year, in the same self-contained class for third-graders that she had attended for third grade. She would have been the only fourth-grader in that classroom. The IEP proposed that she continue in a self-contained program for fifth grade.

The Hearing Officer concluded that, despite her progress, Student was not ready to leave a self-contained setting after third grade, that Pentucket was on notice at the end of third grade of the independent evaluator’s findings to that effect, and that Pentucket had not offered an alternative, intermediate option for fourth grade. The district had informed the Parents at a prior Team meeting that there was no continuation of the self-contained class for fourth grade. Furthermore, the Hearing Officer found the proposed co-taught inclusion classroom inappropriate for the Student for fourth grade. She found that the self-contained program was also inappropriate for the remainder of fourth grade, both because of the disruption that would be caused by a mid-year return from the Landmark School and because the Student would have been the only fourth-grader in a third-grade class.

The Hearing Officer then found the second IEP appropriate to the extent that it continued into fifth grade, since it offered a self- contained classroom taught by a teacher certified in the Wilson reading program and trained in the Orton-Gillingham program. It appears from the decision that the Parents did not offer any evidence to contradict the presentation of the school district regarding the appropriateness of the program proposed for fifth grade. Also, it did not help the Parents’ cause that post-testing by Landmark and the school district at the end of fourth grade did not demonstrate the “dramatic progress” which the Hearing Officer indicated might have differentiated the Landmark School program from the school district’s fifth-grade self-contained classroom.

It is surprising to this commentator that this result was allowed to happen as it did for fifth grade. It appears that the hearing concluded at the very beginning of fifth grade without a stipulation or agreement that the decision of the Hearing Officer would be for fourth grade only. Without such stipulation or agreement, it is surprising that the Parents did not present evidence to counter the school district’s seemingly minimal submission about the fifth- grade program.

A more appropriate way for the parties and the Parents in particular to have addressed the fact that the IEP at issue extended into the middle of fifth grade and therefore was technically “in play” at the hearing, even though very little evidence had been offered about it, might have been to request that the Hearing Officer do what the Hearing Officer did in Pittsfield, supra: defer a decision about fifth grade to allow the parties to complete discovery and present evidence so that the Hearing Officer could make a more informed decision. In the absence of any request by one or both of the parties or a stipulation by the parties that the decision of the Hearing Officer be limited to fourth grade only, however, it is evident that the Hearing Officer believed she had no choice but to act on the evidence that was before her.

School districts are required to allow Parents’ independent evaluators to interview public-school service providers during a program observation

In Northbridge Public Schools,BSEA #09-2533, 14 MSER 348 (2008), the Hearing Officer reaffirmed the importance of program observations by independent experts in preparation for testifying at a BSEA hearing by granting the Parents’ Motion to Compel Independent Evaluator Access. The school district in this case had refused to allow the Parents’ independent evaluator to speak with public-school staff, including the classroom teacher, during a classroom observation. In granting the Parents’ Motion to Compel, the Hearing Officer cited a number of BSEA decisions that stress the importance of a thorough program observation to the presentation of a party’s case. In particular, the Hearing Officer noted that disputesabout the appropriateness of programs are often decided on the basis of the credibility and persuasiveness of the expert testimony, and that an expert’s knowledge of the programs at issue is a critical factor to be considered in weighing the expert’s opinion. The Hearing Officer also cited Chapter 363 of the Acts of  2008 (an amendment to MGL c.71B, §3, effective January 8, 2009), which gives Parents broad authority to have their experts evaluate the Student’s current and proposed educational programs, as evidence that unobstructed program observations by Parents’ experts is essential to the effective presentation of the Parents’ case.

This decision is an extremely important one. The effect of this decision, in conjunction with Chapter 363 of the Acts of 2008, should be to “level the playing field” where school districts have limited and conditioned the access of Parents’ experts to the programs at issue.

Placement in an alternative setting for a fixed period of time does not render such placement the Student’s “stay put” placement

In Dracut Public Schools,BSEA #08-6414, 14 MSER 404 (2008), the Student was receiving his services at the school district’s learning center when he was placed in a collaborative program for the summer and then for a 45-day evaluation. The school district filed a Motion for Partial Summary Judgment, arguing that the placement in the collaborative for a specific period of time for the purpose of an extended evaluation did not render such placement the Student’s “stay put” placement. In granting the motion, the Hearing Officer looked at the intent of the placement and concluded that it was time-limited and diagnostic in nature and therefore could not be considered the Student’s placement pending appeal or “stay put” placement. (See also 603 CMR 28.05(2)(I)(5): an extended evaluation shall not be considered a placement.) 

The Hearing Officer reached a similar result in Sharon Public Schools, BSEA #09-2797, 14 MSER 411 (2008),where the parties had agreed on an interim residential placement for a specific period of time following the Student’s hospitalization, and then agreed that the Student should remain in a day placement immediately following the residential placement. As in Dracut, supra, the Hearing Officer looked to the intent of the parties, which was to have the placement be time-limited and ending on a specific date. The Hearing Officer also found that the parties had agreed that a continuing residential placement was not necessary or appropriate and that the “stay put” placement would be a private day program.

Motions for recusal denied

In Duxbury Public Schools, BSEA #09-1986, 14 MSER 363 (2008), the pro se Parent filed a Motion for Recusal of the Hearing Officer, who had ruled against her in three prior BSEA hearings. The Hearing Officer denied the motion, finding that the Parent had not met the standard for recusal. As a matter of her own discretion, the Hearing Officer then agreed to have the case reassigned so that the Parent’s perception of potential bias could be addressed. On balance, this was a good result since the integrity of the BSEA assignment process was not undermined and the Parent felt vindicated (and the Hearing Officer was spared having to hear a third case involving similar issues raised by the same pro se Parent).

Wachusett Regional School District, BSEA #09-2526, 14 MSER 365 (2008), presenteda different situation, where the Parent’s attorney was seeking reassignment of the case to a different Hearing Officer because she was supporting another client’s complaint against the same Hearing Officer in a separate and unrelated case. The Hearing Officer wisely denied the motion because it did not satisfy the standard for recusal. In fact, the Hearing Officer implied that the complaint in the unrelated case was filed because the Parent was disappointed that she lost that case. Therefore, granting the motion for recusal in this case would have served only to undermine the integrity of the BSEA assignment process.

Motions for recusal such as the two cited above are demeaning to the Hearing Officers involved and waste their time. Such a motion should be filed only rarely and only when the circumstances clearly satisfy the legal standard.

Pervasive noncompliance and inability to serve the complex needs of a Student result in a residential placement

Dracut Public Schools, BSEA #08-8046, 14 MSER 368 (2008), provides an example of a school district’s refusal to acknowledge that it is unable to meet a Student’s very complex needs and, instead of offering an alternative placement, engaging in a pattern of noncompliance that necessitates the Parents’ filing for hearing while the Student is denied services. This case involved a 17-year-old, primarily nonverbal, globally developmentally delayed Student with a seizure disorder and communication, visual, and motor deficits. Parents charge that the school district inappropriately delayed the reconvening of the Team to consider an independent evaluation report from MGH; failed to ensure a wheelchair-accessible van on a number of occasions; failed to provide the Parents with a timely incident report of an injury to the Student at school; failed to provide services to the Student for a seven-month period while she was at home for safety reasons; failed to facilitate the Student’s return to school; failed to provide FAPE for the 2006–2007 school year; failed to provide an IEP that addressed her needs for the 2007–2008 school year; failed to address the ways in which her visual impairment interfered with her functioning; failed to provide staff knowledgeable about teaching Students with visual impairments; failed to provide any communication services to the Student or appropriately evaluate her communication needs; and failed to offer FAPE during the 2007–2008 school year. The Hearing Officer had only limited information before her to order a placement so, instead, ordered an extended evaluation at the Perkins School for the Blind or a comparable setting, a series of evaluations in the Student’s areas of need, a 12-month placement in an appropriate setting, to be determined after the extended evaluation, and compensatory services to be determined after the extended evaluation.

Specialized summer program requested by the Parents is more appropriate than the school district’s generic program

In Cambridge Public Schools,BSEA #09-0291, 14 MSER 336 (2008), the aunt (and legal guardian) of a bright 11-year-old Student with a diagnosis of Pervasive Developmental Disorder (PDD) succeeded in securing reimbursement for a specialized summer program tailored to the needs of students with a PDD diagnosis. The school district’s summer program served 12 students with a wide variety of needs; only two or three of the 12 students were on the autism spectrum. While this program offered social-skills training, the school district was unable to demonstrate why it would otherwise be appropriate for the Student in question. And while the guardian had given only two business days’ notice of the unilateral placement of the Student in the specialized program, rather than the 10 business days usually required, that was sufficient in this case because the school district had been aware months earlier of the guardian’s interest in placing the Student in the specialized program. Since the potential reduction in reimbursement for failure to give the 10-day notice is discretionary, the Hearing Officer exercised her discretion to allow full reimbursement.

When does overuse of the BSEA process amount to harassment?

In Duxbury Public Schools,BSEA #08-3479, 14 MSER 353 (2008), the Hearing Officer heard for the third time the case of a 17-year-old high-school senior of superior cognitive ability with diagnoses of ADHD and depression who was performing well academically but whose mother was concerned about his emotional well-being. Despite the fact that he visited the school nurse at least 20 times during the 2006–2007 school year, the Hearing Officer found that the school district had substantially implemented his IEP and that his prospective IEP was appropriate. Since this was the third hearing addressing the needs of this Student, and since the school district prevailed in all three, the district raised the issue of whether it could be reimbursed for its costs on the grounds that this hearing constituted harassment. While it is this commentator’s opinion that the pro se Parent was seeking a level of perfection in the implementation of her son’s IEP that was beyond what might be considered reasonable and realistic, the Hearing Officer found that there was no intent to harass. Fortunately, the bar was set very high on this issue since a contrary decision would have had a chilling effect on Parents’ use of the due-process system.

In yet another hearing brought by the same Parent, Duxbury Public Schools, BESA #09-1986, 14 MSER 408 (2008), a different Hearing Officer, who had been assigned to the case at the request of the Hearing Officer who had heard the prior three cases, addressed the issue of whether the IEP required or should have required 1:1 services for this Student. After summarizing the Student’s profile and noting that the Student received excellent grades despite diagnoses of ADHD and depression, with weaknesses in organization and homework completion, the Hearing Officer found that 1:1 services had not been discussed at the Team meeting and that the IEP was unambiguous in not requiring such services. He also found that any lapses in implementation by the school district were de minimis and did not warrant a finding of noncompliance.

Parent’s self-help strategy was ineffective in achieving her goal

In Boston Public Schools,BSEA #09-2167, 14 MSER 342 (2008), a pro se Parent seeking an outside placement pulled her seven-year-old son out of school and kept him at home because of her perception that the school district provided inconsistent services or failed to deliver the services it had promised to provide. The school district filed for an expedited hearing on the grounds that the Student was being denied FAPE. The Parent did not offer any expert opinion to support her request for an outside placement. The Hearing Officer was concerned that the Student was at home not receiving services. He also found that the Parent’s case was fatally defective because of the lack of any expert opinion supporting her position. The combination of the two, not surprisingly, resulted in a decision in favor of the school district.

Parent’s claim unaffected by self-help strategy and not barred by the statute of limitations

In Ware Public Schools,BSEA #09-0340, 14 MSER 402 (2008), a Parent pulled her 19-year-old daughter out of school in June 2006 and apparently kept her at home thereafter, rejecting two subsequent IEPs. In June 2008, the Parent requested a hearing concerning certain issues regarding her daughter’s 2005–2006 IEP. The school district moved to dismiss on the grounds that the Parent’s claims were barred by the two-year statute of limitations. In granting the motion in part and denying it in part, the Hearing Officer found that one of the claims was not time-barred because the Parent alleged that she did not know about it until June 2008. This claim involved the alleged improper training of an aide in the use of restraint, which resulted in a choking incident involving the Student. Since the mother alleged that she did not learn of the choking incident until June 2008, the Hearing Officer refused to dismiss this claim, noting that the mother’s claim involved a matter of fact, i.e., the date the mother knew or should have known about the choking incident, which needed to be decided at a hearing.

Public school is proactive in ensuring an appropriate program for a home-schooled Student who might return to school

In Sharon Public Schools,BSEA #09-3175, 14 MSER 430 (2008), the Parents withdrew their 12-year-old sixth-grade son from school and home-schooled him because they were convinced the school district did not know how to manage his behavior. The Student had a constellation of special needs including cognitive, perceptual, communication, motor, and behavioral impairments. At a prior hearing before a different Hearing Officer, the program the Student was in was found to be appropriate. Nevertheless, the Parents disagreed and withdrew their son from school. Because the Student’s behavior had been so disruptive when he was attending school, the school district requested an expedited hearing to have a program in place should the Student suddenly return to school. In ruling that the substantially separate program offered by the school district would be appropriate for the Student should he return to school, the Hearing Officer also found that, in the event of a dispute with the Parents over the placement, the “stay put” placement would not be the regular-education program Student had last attended because, in that setting, there would be a substantial danger of disruption and Student would present a danger to himself or others. It is unclear how the Hearing Officer could make this determination in advance, without knowing when the Student might return and what his behavior would be like at that time. Since the issue of stay-put could always be contested in the future if the Parents insisted on placement in the regular classroom, it seems premature for the Hearing Officer to decide this issue before it was actually presented.

Parent’s right to home-school her son is a bar to requiring a psychiatric evaluation

In Amherst Public Schools, BSEA #09-1347, 14 MSER 419 (2008), the Hearing Officer ruled that a Parent who was home- schooling her seven-year-oldson with social/emotional difficulties should not be required to have him undergo a psychiatric evaluation proposed by the school district. While the Parent agreed with the school district that her son required a small therapeutic program, she disagreed that the program offered for him was appropriate. The Hearing Officer, however, found that the program was appropriate based on the evidence before her. Nevertheless, the Hearing Officer found no compelling reason to try to force the Parent to have her son undergo the psychiatric evaluation requested by the district. In large part, this was because the Student was being home-schooled and the Parent indicated her intent to move out of state in the very near future. 

Hearing Officer interprets and enforces a settlement agreement

In Wachusett Regional School District,BSEA #09-2526, 14 MSER 382 (2008), the Hearing Officer interpreted and enforced the terms of a settlement agreement, granting the school district’s motion to dismiss an effort by Parents to secure a residential placement. The settlement agreement had provided for the Student to attend a private day placement. While in that placement, the Student was hospitalized and then placed in a step-down residential placement. The Parents argued that this sequence of events triggered the clause in the agreement which stated that upon termination of the placement, the Team would reconvene to consider alternative placements. The Hearing Officer found, however, that the hospitalization and time-limited step-down program constituted excused absences of a temporary, time-limited nature and not the complete change of placement which the Parents were arguing had occurred. Therefore, the day placement remained in effect and the Parents were precluded from challenging it since it was part of the settlement. In reaching this conclusion, the Hearing Officer stressed the importance of upholding the terms of settlement agreements because they constitute a critical part of the dispute-resolution system.

This was clearly the correct result and a further affirmation of the important concept that the BSEA has jurisdiction to interpret and enforce the terms of settlement agreements. Since settlement agreements are so central to the IDEA dispute-resolution process, it is critical that the agreements can be enforced relatively simply as part of an administrative proceeding before the BSEA rather than via a far more cumbersome and expensive court proceeding.

Hearing Officer creates a process for resolving a dispute over the choice of a residential program

In Duxbury Public Schools, BSEA #09-0295, 14 MSER 398 (2008),the dispute concerned the appropriate residential program for an eight-year-old child with a history of leukemia, profound developmental delay, and complex special needs including a cortical vision impairment. The Parents were seeking a placement at the Perkins School for the Blind on the theory that the cortical vision impairment was the Student’s primary disability, which needed to be addressed before other areas of need could be served. The school district, on the other hand, was proposing a placement at the Evergreen School on the theory that the Student was multiply disabled, and that the primary service emphasis should be on the multiple disabilities rather than the vision impairment. 

The Hearing Officer was unable to decide the issue on the evidence presented, so she ordered the parties each to submit names of three independent evaluators and to agree on one expert to perform an evaluation of the Student and the two proposed programs. Failing such an agreement, the Hearing Officer indicated that she would name an expert. She also indicated that she would reconvene the hearing, if necessary, following the completion of such evaluation.

There has been a division of opinion among the Hearing Officers about whether it is appropriate for a Hearing Officer to create a process for the generation of additional evidence to decide a case or whether it is a better practice to rely solely on the evidence presented by the parties at the initial hearing. In this commentator’s opinion, it is preferable for a Hearing Officer to adopt the approach taken in this case because the additional evidence will result in a more informed and reliable decision.

Parents cannot refuse a school district’s offer of transportation and expect to be reimbursed for providing it themselves

In Mashpee Public Schools,BSEA #09-1946,14 MSER331(2008), the school district had been reimbursing Parents for providing transportation to the Learning Prep School since 2002. The parties stipulated to have such arrangement continue until the decision of the Hearing Officer, on the grounds that this arrangement constituted the “stay put” placement regarding transportation. The Hearing Officer took jurisdiction over the settlement agreement and interpreted it to apply only to the school year following to the signing of the settlement agreement. The Hearing Officer ruled that, in subsequent years, the school district could change the transportation arrangement, e.g., arrange for the provision of transportation and stop reimbursing the Parents for transport, without violation of its terms. 

As in Wachusett, supra, the Hearing Officer correctly and wisely affirmed the jurisdiction of the BSEA over settlement agreements and interpreted and enforced the terms of the agreement to resolve the dispute.

Educational Surrogate Parent is unable to insist on the inclusion of restraint in an IEP

In Springfield Public Schools,BSEA #08-4171,14 MSER 334 (2008), the Hearing Officer refused to require the school district to include the use of restraint in the Student’s IEP upon the request of the Student’s Educational Surrogate Parent, who believed it necessary to prevent the Student from running away. The Hearing Officer found that the “restraint regulation,” 603 CMR 46.07, must be narrowly construed and that the use of restraint will be authorized only when there is a showing of imminent harm to the Student or others. Applying the regulation to the facts presented at the hearing, the Hearing Officer concluded that such a showing had not been made by the surrogate parent.

An order for home placement requires a precise statement that the Student will be unable to attend school for at least 14 days

In Danvers Public Schools,BSEA #09-2776, 14 MSER 381 (2008), the school district filed for a hearing seeking affirmation of its decision refusing a request for home services where the physician failed to specify that the Student would be out of school for more than 14 days as the result of her condition. The Hearing Officer denied the Parents’ motion to dismiss, finding that the physician’s statement was insufficient. The lesson to be learned is that approval of requests for home programs based on a physician’s statement are not automatically granted and that such a request must contain all of the essential elements specified on the home/hospital form. The ruling in this case was not simply a technical one but reflected the fact that the nature and severity of the Student’s condition was such that the physician was unable to state “unequivocally” that the Student would be unable to attend school for more than the required 14 days. In this regard, it should be noted that a physician needs merely to state his/her professional opinion that it is likely a Student will be out of school for more than 14 days, rather than being required to guarantee such prediction.

School district’s motion to join a state agency denied

In Worcester Public Schools,BSEA #09-3109, 14 MSER 434 (2008), the Hearing Officer denied the school district’s motion to join the Department of Children and Families (DCF). The case concerned an eight-year-old second-grader with a mood disorder (NOS), early onset bipolar illness, and a learning disability (NOS) who had been placed in a day program at the Franklin Perkins School but who was hospitalized a month later for several months and then placed in a residential step-down program before being discharged to home. The Parents had filed for a hearing requesting a residential placement, and the school district had moved to join DCF. The school district argued that DCF should provide noneducational home-based services to enable the Student to succeed in a day program, or, in the alternative, that if a residential program was needed, it was needed for noneducational reasons and should be funded by DCF.

In denying the motion for joinder, the Hearing Officer noted that Student had had a long history of receiving special-education services and had been hospitalized on numerous occasions. Of key importance to this decision was that the Student was found to have severe emotional disabilities and to be at great risk of harm, such that time was of the essence in deciding the underlying dispute over the need for a residential program. Also, the Student was already a client of DCF, which was voluntarily providing home-based services. Thus, if the school district was found not to be responsible for the residential placement, it would be a simple matter to join DCF. Granting the motion for joinder before hearing the case, however, would have resulted in an undue delay, considering the urgency of addressing the Student’s needs. Implicit in the Hearing Officer’s decision was a determination that there was a substantial likelihood that the school district would be found responsible for funding a residential program.

Hearing Officer affirms primary BSEA jurisdiction where the Parents have filed for relief from the MCAD

In Chicopee Public Schools,BSEA #09-0036, 14 MSER 406 (2008), Parents challenged the school district’s refusal to allow a service animal in the classroom by filing a discrimination claim in the MCAD. The MCAD Investigating Commissioner had issued an Order prohibiting the school district from seeking a ruling from the BSEA concerning whether allowing the service animal in the classroom was a reasonable accommodation. This Order was based in part on the Student’s critical need for the service animal and the lack of any significant countervailing interest on the part of the school district. The school district nevertheless requested a hearing before the BSEA on this issue. Parents filed a motion to dismiss based on the Order of the Investigating Commissioner.