Another recent development is the passage of a bill, Chapter 285 of the Acts of 2008, which amends G.L.c.71B, §2 by changing the age at which transition planning must begin for children with disabilities, to age 14. This is a change from IDEA 2004, which requires transition services to begin at age 16. The bill passed on August 6, 2008, and took effect on November 4, 2008.

PRIVATE PLACEMENTS

Six of the Third Quarter 2008 BSEA opinions addressed parents’ seeking private placements in an effort to provide more intensive services to students than could be provided in the districts’ programs. In all but one case (Cambridge, in which the parent sought reimbursement for summer services) the parents sought full-time day or residential placements. Notable in each of these cases was the high bar each Hearing Officer set for parents’ experts in their challenges to districts’ programs. Parents’ experts may offer opinions that are discounted because the experts are not as intimately involved with the students as the districts’ experts are, or they may be discredited because they are the only experts recommending out-of-district placement. A parent’s expert’s opinion may be discounted at hearing even because the parent chose the less-expensive method of submitting that opinion through a written report as an exhibit, rather than having the expert testify in person. And finally, where parents’ experts typically focus on what type of placement may best address a student’s profile, that opinion may be swept away by the Hearing Officer’s obligation to order those programmatic options that may not necessarily be the “best” options, but which do meet the FAPE standard.

Parent unsuccessfully challenges district’s inclusion program, despite Student’s severe language-based learning disability and school-related anxiety

In North Reading Public Schools, BSEA#08-4427, 14 MSER 219 (2008), Parent sought reimbursement of tuition for her unilateral placement of Student at Landmark. Student had previously attended a public-school-based, substantially separate program, and North Reading proposed to transition Student into a partial-inclusion program.

Parent’s neuropsychologist testified that she had observed the district’s proposed program, noting significant variability in the cognitive and academic levels of the students in the substantially separate portion of the program, and a fast-paced, high level of difficulty in the inclusion portion, to the extent that she felt Student could not make effective progress there. She therefore recommended Student’s continued placement in a substantially separate, language-based classroom designed for students with severe language-based disabilities, such as that at Landmark where she had already made effective progress academically and decreased her school-related anxiety.

After hearing extensive testimony from the district’s experts, the Hearing Officer concluded that North Reading’s proposed partial-inclusion program offered Student a free, appropriate public education and would have provided services that addressed each of Student’s identified needs while allowing her to access the curriculum for both school years at issue.

This case highlights the particular challenges that experts may face when testifying on behalf of a pro se parent. In this case the Parent’s expert focused on what type of educational placement (and emotional environment) would best address the needs of someone of this Student’s profile, but did not necessarily identify what would constitute FAPE for this Student. The FAPE standard, as well as the requirement for an educational environment closest to the mainstream, won the day for the district.

Parent is not permitted a private placement based on one expert’s written recommendation

In Ware Middle School, BSEA #08-0723, 14 MSER 264 (2008), another pro se parent sought an out-of-district placement for her son. At hearing, Parent relied upon only two exhibits—an independent speech and language evaluation of Student, and an observation report by the same expert of Student in his public-school program. The expert herself did not testify.

Parent’s expert’s speech and language evaluation led her to recommend that Student be placed in an “alternative language-based setting” where language skills would be taught across all areas. There was no evidence that she ever spoke with Student’s teachers, reviewed Student’s IEPs or progress reports, or observed Student in any setting other than the testing environment. When Ware invited Parent’s expert to observe the district’s program, she continued to advise against an integrated, mainstream classroom environment and to recommend that Student be placed in a highly structured, language-intensive program. She also recommended direct speech and language services and an extended-year program, which Ware offered to provide. But Parent declined both, testifying that she was not comfortable with the designated service provider.

The district hired its own expert to develop recommendations for Student’s placement, but because Parent did not consent to Student’s evaluation, Ware’s expert conducted only a record and program review. Ware’s expert concluded that Student was making documented, effective progress in the district’s program, and that the district was implementing each of Parent’s expert’s recommendations with the exception of the alternative setting. At hearing, Parent agreed that Student was making demonstrable progress in his sixth-grade program, but Parent felt he had experienced a “difficult” fifth-grade year and that the district “dumbed down” Student’s curriculum.

The Hearing Officer found that the district’s program incorporated the programming recommendations of all experts, including Parent’s, and that as a result Student was making steady progress. In addition, the Hearing Officer noted that over the years, only one evaluator—Parent’s expert—had recommended an alternative setting for this Student.

This case highlights the need for parents’ experts’ live testimony at hearing, not merely the introduction of experts’ reports as exhibits. While live testimony may not necessarily move a Hearing Officer to a different result, parents have an extraordinarily heavy burden of proof if their experts are not present for the give and take of examination and cross-examination.

As in the Norwood case, above, parents must find a way to fend off a district’s argument that a student is making effective progress in the district’s program; parents must consult standardized tests, work samples, observational data, and any other type of evidence that might belie the assertion that a student is performing effectively. A parent’s expert’s recommendation for intensive services in a private placement will not stand without evidence that the student is failing to perform within the compass of his or her cognitive potential in the district’s program.

Tuition reimbursement is awarded, but only on a partial basis

At issue in Cambridge Public Schools, BSEA #08-7180, 14 MSER 274 (2008), was whether the district must reimburse Parent for tutoring expenses for summer 2007 and Parent’s cost of providing the Carroll School summer program in summer 2008.

Cambridge’s IEP covering summer 2007 included extended-year services for Student; however, the IEP failed to indicate the start date of this program. Despite Parent’s many requests to Cambridge, she received no response during the school year or early weeks of summer vacation about when the extended-year program would begin. By the time Cambridge’s chosen tutor contacted the parent, in early July, Parent had already hired one of Student’s former teachers as a summer tutor. Cambridge cited two reasons for declining to reimburse Parent for these tutoring services: (1) it would lead to an “unwelcome precedent” of allowing parents to choose their own providers, and (2) the hiring of summer staff was governed by collective bargaining agreements.

The Hearing Officer cited School Committee of Burlington v. Department of Education of Mass., 471 U.S. 359, 369-70 (1985), for the proposition that reimbursement of the cost of self-help may be available where a district fails to offer or provide appropriate services and the services obtained by the parents are appropriate. Whether the district must reimburse the parent is decided on the reasonableness of the parent’s actions under the circumstances. Here, the Hearing Officer found that Parent was reasonable in her fear that summer services would not be provided to Student, based upon the complete silence from Cambridge. Therefore, the Hearing Officer ordered that the district reimburse Parent for the tutoring costs—though in this case if was for only the one week of tutoring privately provided before Cambridge’s chosen tutor contacted Parent.

For the summer of 2008, Cambridge and Parent’s independent neuropsychologist re-evaluated Student. Due to Student’s language-based and non-verbal learning disabilities, Parent’s neuropsychologist opined that Student required summer programming with both specialized academic instruction and social/recreational programming among peers with similar profiles. Cambridge denied Parent’s request for summer placement at Carroll, and instead offered its own academic instruction from June 30, 2008, to August 1, 2008.

Noting that Parent must prove by a preponderance of the evidence that the district’s 2008 summer program would be inappropriate for Student, the Hearing Officer concluded that Parent did not establish that Student required a recreational component to the summer program, nor did she provide any evidence about the peer grouping in the district’s summer program aside from her own observation. Citing Schaffer v. Weast, 546 U.S. 49, 62 (2002), the Hearing Officer held that, because Parent had failed to carry the burden of persuasion and the evidence was in “equipoise,” the district must prevail.

As with other private-placement cases, this opinion illustrates that parents’ expert(s) must carry the parents’ full burden of proof in challenging a district’s proposed program. In the instant case, might the Hearing Officer have been persuaded of the Student’s need for a recreational component by testimony from a therapist who has worked with the Student, to the effect that Student needs such activity to gain and practice social skills and/or to enhance the self-esteem that is a necessary predicate to learning? Might an additional expert have provided proof of the need for services to address emotional fragility, low self-esteem, or impaired social-navigational skills? It is unlikely that a single expert could carry such arguments convincingly on his or her own.

A paucity of expert testimony once again leads to denial of private placement

In Hampden-Wilbraham Regional School District, BSEA #08-0880, 14 MSER 290 (2008), Parents asserted that the district’s program for their autistic son did not appropriately address his needs, and therefore Hampden-Wilbraham should be fiscally responsible for Parents’ unilateral placement of the Student at Realizing Children’s Strengths (RCS) Learning Center. In addition, Parents sought compensatory services for the district’s failure to provide the Student with an IEP from March 2007 until October 2007, as well as compensatory services for Student reaching back two years.

The Hearing Officer found that Student made slow but steady progress in several areas, as documented by evaluations throughout the prior several years and testimony provided at hearing. The Hearing Officer placed “substantial weight” on the testimony of the district’s witnesses, finding that they had all instructed, interacted with, and observed Student on a daily basis over extended time. The Hearing Officer also found it highly significant that no professional who had ever taught and/or evaluated Student recommended an out-of-district placement for him. The Parents’ expert, a behavior analyst, testified on their behalf but had never evaluated or taught Student. No one else, other than Student’s mother, testified on their behalf, and no one from RCS testified.

The Hearing Officer took particular note of the fact that Parents’ behavioral analyst did not become involved with the case until after Parents had unilaterally placed Student at RCS and two months after they filed for hearing. The Hearing Officer declined to afford his testimony and recommendations significant weight, as his involvement with Student was limited and occurred “essentially ‘after the fact.’”

As to the district’s failure to provide Student with an IEP from March to October 2007, the Hearing Officer found that the district had no liability due to Parents’ actions during that time period. Parents had canceled Team meetings at the last minute, failed to attend scheduled Team meetings for which they had received notice, and did not attend a resolution session specifically requested by their own attorney, which led directly to the delay in the district’s proposing an IEP for that time period. In deciding Parents’ compensatory-services claim under the two-year statute of limitations, the Hearing Officer noted that all IEPs in dispute, with the exception of the rejected 2007-2008 IEP, had been accepted by Parents and had all expired.

Responding to chronic absenteeism

Three cases from Springfield this quarter dealt with the school district’s obligations when a special-education student is absent for extended periods. In one case, the Hearing Officer found that the district did not fulfill its obligations and therefore owed compensatory services to the Student. In the other two cases, the Hearing Officer found that Springfield had responded appropriately to the absenteeism and did not owe anything to the Student.

In Springfield Public Schools, BSEA #08-3309, 14 MSER 197 (2008), the issue as framed by the Hearing Officer was whether “[a] school district ha[s] an affirmative duty to reconvene a special education team when a student with disabilities over the age of compulsory school attendance is absent from school without a valid excuse.” In this case, the 16-year-old student with disabilities missed 33 days of school in less than five months. The Hearing Officer ruled that Springfield, which had taken no action whatsoever, had an affirmative duty to convene the Student’s Team or otherwise take responsive action, and that failure to do so deprived the Student of FAPE. Springfield’s position was that because Student was over the age of compulsory school attendance, it had no such duty, but the Hearing Officer cited several analogous statutes and regulations in reaching the conclusion that a school district does indeed have an affirmative duty to respond to a pattern of absences.

First, the Hearing Officer turned to the Massachusetts Compulsory School Attendance law, MGL c.76, §18, which provides that before a student can be considered to have permanently left a school, the school must notify the student’s parents after a student’s 15 consecutive absences that they have the right to meet with the school within 10 days. The Hearing Officer found that this statute indicated that the Legislature considered 15 days sufficient to potentially impair a student’s education and trigger a response by the school. Springfield’s own attendance policy states that a student would not receive credit for a course if absent for four or more days during a marking period, and that a student absent more than 13 days during the school year would not be promoted. The Hearing Officer saw this policy as a recognition by Springfield that a student, with or without disabilities, could not make effective progress if absent from school for more than 13 days. Moreover, like the Massachusetts Compulsory School Attendance law, Springfield’s policy required the school to take certain active steps that were not taken in Student’s case. In fact, in this case, the school did nothing at all.

The Hearing Officer also found that, although no federal special-education regulations specifically address a school’s duty to examine a student’s chronic absenteeism, various provisions do set out circumstances when it is “necessary” for a school to take action in response to a student’s absence. For example, federal regulations establish a 10-day maximum period for exclusion for disciplinary reasons before a student’s Team must meet to consider amending the current IEP or alternative placement. 20 USC 1415(k); 34 CFR 300.530. Massachusetts special-education regulations also require a district to provide educational services to a student who has been out of school 14 days for medical reasons. 603 CMR 28.03(3)(c). The Hearing Officer found that all of these various sources supported a general consensus that absence from school for a period from 10 to 15 days creates a presumption that a student is not making effective educational progress. The Hearing Officer rejected Springfield’s argument that its high-school program was at all times available to Student and it could not compel a 16-year-old to attend. The Hearing Officer pointed out that Springfield never made any of the required inquiries, never sent the required notices, never held required meetings or otherwise took the “necessary” actions contemplated by state law and Springfield’s own attendance policy. Since Springfield took no action at all, the Hearing Officer found that Springfield failed to provide FAPE and ordered Springfield to provide no less than the equivalent of 23 school days in the summer of 2008.

In contrast, in Springfield Public Schools,BSEA #08-3061, 14 MSER 205 (2008), the school took insufficient action in response to Student’s chronic absenteeism. In this case, faced with excessive absences of a 12-year-old student with emotional, learning, and health disabilities, the same Hearing Officer concluded that the district had taken all “necessary” procedural steps warranted by Student’s absenteeism. The district had convened four Team meetings over the course of one calendar year in response to Student’s repeated truancy. It made appropriate referrals to DSS and the juvenile court, seeking additional assistance in dealing with both Student’s attendance difficulties and the stresses in his home environment. The Hearing Officer refused to adopt a per se rule that each missed school day is a denial of FAPE which requires compensatory services. Instead the Hearing Officer adopted a balancing approach, weighing the actions of the district against the extent of the Student’s deprivation, if any. Because Springfield met its procedural and substantive obligations to provide FAPE, Student was not entitled to compensatory education for the missed school days.

While not setting forth a specific standard for determining when chronic absenteeism constitutes a denial of FAPE, a different Hearing Officer in Springfield Public School, BSEA #08-4873, 14 MSER 300 (2008), seemed to employ a similar balancing test. Despite finding some procedural violations in the district’s failure to provide the Parent with notices in Spanish, the Hearing Officer concluded that Springfield did take sufficient steps to address a 15-year-old’s chronic absenteeism, although it never convened a Team meeting specifically to address the issue. During the school year, there had been multiple meetings by Team members, attempts to involve Parent, efforts to work with the family, and even a home visit, as well as referrals to the Department of Children and Families (“DCF,” formerly “DSS”). The Hearing Officer also noted that no evidence was presented that there was a nexus between Student’s truancy and her disability. Given that observation, the Hearing Officer concluded that Springfield was not required to convene the Team to address Student’s truancy, since her failure to progress effectively was not due to deficiencies in or implementation of her accepted IEP. Rather, the Hearing Officer found that despite all efforts by the school and others, Student made it clear that she was disengaged from the educational process and chose not to attend school.

Comment: It appears that this third Springfield decision on absenteeism is essentially consistent with the other two decisions by a different Hearing Officer. No explicit balancing test was discussed, but the decision contains ample evidence that Springfield was actively responding to Student’s absenteeism. There is scant discussion of Student’s particular disabilities, which would have been helpful in understanding the Hearing Officer’s conclusion that she was “disengaged from the educational process” and that Student’s truancy had no relation to her disability.

Jurisdiction, waiver and mutual mistake

Four cases highlight the importance of parties’ understanding fully the consequences of documents they sign, as well as the importance of responding in writing to any disagreements they might have with the other party’s written understanding of a oral agreement.

In Nashoba Valley Technical School District, BSEA #08-3193, 14 MSER 235 (2008), Nashoba filed a motion seeking to dismiss Student’s claims that it had discriminated against him by denying him admission in violation of federal and statutory due-process clauses, of DESE regulations (603 CMR 4.00) governing vocational education programs, and of Section 504 of the Rehabilitation Act of 1973. First, the Hearing Officer found that the BSEA lacked jurisdiction to consider constitutional due-process claims or other federal claims pursuant to 42 USC §1983. He similarly found no jurisdictional basis for the BSEA to resolve claims under vocational-education regulations that were not special-education regulations. The Hearing Officer then considered Student’s §504 claims. It was not disputed that Student had a “disability” within the meaning of §504. Nashoba argued, however, that Student was simply not “qualified” for enrollment because he had not met its admission standards, and the school had not discriminated against him in the admission process. With respect to the 2008 admissions application, the Hearing Officer found that the motion to dismiss was premature, mainly because Student’s attorney stated in oral argument that he intended to file an Amended Hearing Request. With respect to the 2007 admissions application, the Hearing Officer did allow Nashoba’s motion to dismiss, finding that the Student had waived his right to reasonable accommodation on his application form, signed by the student, the grandparent, and the Groton-Dunstable guidance counselor. Student had circled “Yes” indicating that he had a disability, but circled “No” to the next question, “If yes, do you need accommodations during the application for admission process?”

In Sutton Public Schools, BSEA #07-7534, 14 MSER 182 (2008), Parents, representing themselves, sought reimbursement for privately obtained services for the 2006-2007 school year based on three alleged procedural violations by Sutton’s Team: (1) failure to develop an IEP each year, (2) failure to re-evaluate Student every three years, and (3) failure to consider appropriately several educational evaluations obtained by the Parents. This was the second hearing between the same parties. In a previous case, Sutton Public Schools, BSEA #05-3841, 13 MSER 95 (2007), Sutton had filed a hearing request after Parents removed Student from public school and obtained alternative services, including services from the Lindamood Bell Center. Sutton had alleged that the alternative program put together by the parents did not provide FAPE and that the programs Sutton proposed, both in school and in an alternative out-of-district placement, did provide FAPE. In that case, after eight days of hearing, the Hearing Officer found that both programs proposed by Sutton did provide FAPE. In the current case involving the 2006-2007 school year, the Hearing Officer found that the Parents had waived their right to charge two of the violations by entering into an oral agreement with Sutton to defer the re-evaluation and the development of the IEP for the 2006-2007 school year. While the agreement was reached during a discussion, Sutton’s attorney followed up by sending a letter to Parents’ attorney (who no longer represented Parents in connection with the second hearing) specifically to confirm Sutton’s understanding that the re-evaluation, the Team meeting, and the development of an IEP for the upcoming school year were to be delayed. The Parents’ attorney wrote back stating that Parents were not waiving the Team meeting, but his letter was silent about the re-evaluation and the IEP. A subsequent letter from Father (also an attorney) was similarly silent on the issue of the re-evaluation. While the Hearing Officer found the exchange of letters sufficient to establish the existence of an agreement, he also noted that even in the absence of an agreement, Sutton’s letter put Parents on notice of its understanding. The Hearing Officer concluded that it was reasonable for Sutton to rely on that understanding unless notified otherwise. The Hearing Officer further concluded that in the context of the on-going negotiations and pending BSEA proceeding, the agreement was reasonable.

With respect to the third alleged procedural violation, concerning a Team meeting held on May 26, 2006, the Hearing Officer found that it had not been waived and he then considered the Parents’ challenges. Parents alleged that the Team refused to consider certain progress reports from the Lindamood Bell program that the parents viewed as independent evaluation reports, which would have required the Team to reconvene within 10 school days. The Hearing Officer noted that 603 CMR 28.04(5)(f) requires the IEP Team to review independent evaluation reports within 10 school days, but that the regulation does not specifically address progress reports. He found that progress reports are covered by 603 CMR 28.04(3), which requires a district to review a student’s progress at least annually. Thus, the Hearing Officer concluded that progress reports are to be reviewed at the annual meeting, but do not have to be reviewed at a Team meeting convened for the purpose of reviewing evaluations. Parents also alleged that the Team failed to consider sufficiently the six independent evaluation reports they presented. Sutton conceded that the IEP Team did not consider one, which had been presented for the first time at the meeting. The Hearing Officer noted that Sutton was within its rights at that point, as 10 school days had not passed. As for the other five evaluations, Parents conceded that the Team did review them, but questioned the quality and length of the Team’s consideration. Noting that the term “consider” is not defined by either state or federal regulations, the Hearing Officer relied upon the First Circuit case of G.D. v. Westmoreland School District, 930 F.2d 942, 947 (1st Cir. 1991), which interpreted the “consider” standard to require more than a perfunctory or meaningless review, but not requiring a “substantive discussion.” The Hearing Officer found that the IEP Team met that standard. The Hearing Officer did find that Sutton’s IEP Team was deficient in one respect—the Team failed to include an individual who could interpret the “dynamic listening” component of an OT evaluation. As there was no evidence that Student was harmed by the deficiency, however, the Hearing Officer found that there was no denial of FAPE.

In the third case, Longmeadow School District, BSEA #07-2866, 14 MSER 249 (2008), the issue to be decided was whether Parents had waived all claims by signing a handwritten agreement at a prehearing settlement conference with BSEA Assistant Director Reece Erlichman. Both parties were represented by counsel at the conference. The handwritten memorandum drawn up and signed at the conference stated that Sutton would provide certain compensatory services and reimbursements, and that Parents would provide “[a] complete release of all claims up to the execution of the complete agreement.” Parents later claimed that their understanding of the settlement agreement was that they would release only compensatory and reimbursement claims, and that any claims they had against outside consultants were not waived. Based upon the unambiguous language of the settlement agreement (and perhaps the fact that Parents were represented by competent counsel at the time the memorandum was signed), the Hearing Officer found that even if Parents had misunderstood the terms, it was a unilateral mistake that did not invalidate the agreement.

The same Hearing Officer reached a different result in a situation where all parties to the agreement were acting under the same misunderstanding. In Wrentham Public Schools, BSEA #08-1326, 14 MSER 230 2008), the Hearing Officer released Norwood from its financial responsibilities under a cost-sharing agreement with DYS and Framingham. Here all parties to the cost-sharing agreement mistakenly thought that the parents residing in different towns shared physical custody. It was later learned that at all relevant times, the mother had sole physical custody of Student and Student did not reside in Norwood where the father lived. In light of the fact that all of parties shared a “mutual mistake,” Norwood was released from the cost-share agreement.

Comment: In both Longmeadow and Wrentham, it is noteworthy that the Hearing Officer found that the BSEA had jurisdiction to interpret the agreements.

Stay put

Sharon Public Schools, BSEA #08-4524, 14 MSER 259 (2008), presents another case involving the intersection of regulations requiring parental consent to special-education services and the “stay put” provision. This particular case involved a fifth-grade student who had been receiving special-education services since kindergarten. Parents rejected the IEP developed by Sharon for the current year. Sharon then initiated an appeal seeking administrative approval of the IEP. Parents filed a response seeking to terminate all special-education services. The Hearing Officer treated Parents’ response as a motion to dismiss, with the burden of persuasion on Parents. Nonetheless, the Hearing Officer granted Parents’ motion, relying upon both the federal and state mandates that publically funded special-education services be provided to students only with informed parental consent or by Court Order. 20 USC §1414(a)(D)(II) and 34 CFR 300.300(b); MGL c.71B §3 and 603 CMR 28.07 (1)(b). While the Hearing Officer noted that the language of the “stay put” provision of 603 CMR 28.08(7) provided some support for the school’s position that Student was entitled to the continuation of services during the appeal, this was contrary to the federal admonition that an administrative appeal could not be used to force or substitute parental consent to special-education services.

It should be noted that a parent’s revocation of parental consent has a significant downside. Once parents revoke their consent to special-education services, the student is no longer entitled to any of the protections that accrue to students with disabilities. Thus, the student becomes subject to the same gradation and promotion policies, testing and evaluation procedures, and discipline codes as regular-education students. For example, if behavioral issues arise, the school will not have to hold a manifestation hearing prior to imposing discipline. Also, the student would not be entitled to compensatory services if he did not progress effectively in a regular classroom.

In the Sharon case, some months later, a hearing was held on the school’s appeal. Parents chose not to participate. The Hearing Officer found that the IEP developed by Sharon was reasonably calculated to provide FAPE and that enrollment of the student in a regular-educational program was a denial of FAPE.

Comment: Because the BSEA lacks enforcement authority (see Cohasset Public Schools, BSEA #07-5436, 13 MSER 319 [2007]), if Parents continue to withhold consent, the district’s only recourse would be to file an action in superior court seeking a Court Order authorizing the school to implement the IEP without parental consent.

Dracut Public Schools, BSEA #09-1566, 14 MSER 286 (2008), presents an unusual stay-put dispute between the district and Melmark, a private special-education school, where the district had placed Student for residential educational services in 2006. In this case, the district sought to invoke stay-put over Melmark’s protest when the district failed to locate an appropriate alternative placement for Student. Student was a 12-year-old boy with disabilities resulting in behavioral issues, including self-injurious behavior, aggression toward others, and property destruction. Melmark had sought to address the behavior with limited success; Student continued to exhibit aggressive behaviors toward himself and others. By late 2007, Student’s behavior had further intensified, and at a January 2008 Team meeting with Dracut, Melmark staff expressed concerns about the safety risks presented by Student, as well as his lack of progress.

On April 25, 2008, Student was placed at Bradley Hospital’s Center for Autism and Developmental Disabilities (“Bradley”), a psychiatric hospital, for the purpose of assessing his behavioral and medical status and to identify possible pharmacological and behavioral interventions. After Student was discharged from Bradley to Melmark on July 7, 2008, not only did Student exhibit new, aberrant behaviors, but his dangerous behaviors increased in both severity and frequency. On July 18, 2008, Melmark initiated an involuntary emergency psychiatric hospitalization of Student. Student was ultimately re-admitted to Bradley on July 30, 2008. The next day, at a Team Meeting, Melmark notified Dracut that it was terminating Student from its program.

The issue to be decided by the Hearing Officer was whether Melmark was Student’s “then-current educational placement” for the purpose of stay-put, and if so, whether Dracut could insist upon placing Student at Melmark upon discharge from Bradley. Parents were not parties to the dispute, though Mother testified at the hearing that she thought Melmark was no longer safe or appropriate for her son. The Hearing Officer determined that Melmark was no longer appropriate and should not be considered Student’s stay-put placement. Of particular concern was the deterioration of Student’s behaviors after his discharge from Bradley to Melmark on July 7, 2008, as well as Mother’s testimony.

Comment: While the Hearing Officer suggested that Dracut use the resources at DESE to assist in finding an appropriate placement, if Dracut fails to find one by the time of Student’s discharge from Bradley, it appears that the unfortunate result will be another emergency hospital admission of Student, with perhaps retransfer to Bradley.

Rulings on motions to dismiss/joinder

In Nashoba Regional School District, BSEA #08-6594, 14 MSER 298 (2008), the Hearing Officer addressed the issue of whether a state agency should be joined as a party pursuant to BSEA Hearing Rule IJ. Student resides at Robert F. Kennedy Children’s Action Corps through placement and funding by the Department of Children and Families (“DCF”)(formerly known as the Department of Social Services). Although still residing at RFK, Student transitioned from middle school to Nashoba Regional, where she attends a therapeutic program. Student filed a hearing request seeking a program where she would receive both her residential and educational services, funded by Nashoba. Alternatively, by the motion for joinder, Student sought joint funding of such a program by Nashoba and DCF. The Hearing Officer granted the motion for joinder, finding that DCF needed to be a party to the dispute for the purpose of determining what, if any, additional serves from DCF are required and whether those services should be provided at a specific placement. While the Hearing Officer found no case law addressing the extent of BSEA’s authority to provide services at a particular placement pursuant to its jurisdictional authority over state agencies in MGL c.71B, §3, the Hearing Officer noted that BSEA decisions routinely order school districts to provide or fund specific educational placements. In this case, it might be necessary to conclude that for Student to receive FAPE, any services to be provided by Nashoba and by DCF should come from the same provider.

Boston Public Schools and Boston Collegiate Charter School, BSEA #08-3551,[3] 14 MSER 257 (2008), concerns a Student who had been receiving special-educational services at Boston Collegiate Charter School (“BCCS”) pursuant to an IEP for the period February 2006-February 2007. Parents notified BCCS on a timely basis that they were placing Student at Landmark and requesting public funding, and simultaneously notified Boston Public Schools as the district where Student resided. Parents unilaterally placed Student at Landmark for the 2006-2007 school year. On December 19, 2007, Parents filed a hearing request naming BCCS and Boston as defendants. The hearing request alleged that BCCS’s IEP was inappropriate and that BCCS and Boston violated Student’s rights by failing to convene a Team meeting after notice of Parents’ intention to place Student at Landmark. BCCS filed a motion to dismiss it as a party on the grounds that Parents had withdrawn Student as of September 5, 2006, and Student was therefore the responsibility of Boston, his district of residence. BCCS also argued that even if Parents had not withdrawn Student, as a charter school it was not financially responsible because of MGL c.71, §89(t) and its implementing regulation, 603 CMR 28.10(6)(a).[4]

Boston and Parents both opposed BCCS’s motion. Boston argued that BCCS was responsible for the 2006-2007 IEP developed for Student and that Boston had not been involved in the creation of that IEP. Boston also argued that even if G.L. c.71, §89(t) applied and Parents prevailed, they would be entitled to equitable remedies, such as tuition reimbursement from BCCS. The parties requested additional time to submit an opinion from DESE regarding the relative responsibility of BCCS and Boston for the Student’s placement at the Landmark School. DESE’s opinion stated that 603 CMR 28.10 (6)(a), which sets forth certain situations when a charter school is required to involve the district of residence in a Team meeting to determine placement, was inapplicable when a parent made a unilateral placement and seeks reimbursement. Because the Hearing Officer found that “there is at present no regulation, and since at this juncture there is a dispute of material facts,” she denied BCCS’s motion as premature.

In Westfield Public Schools, BSEA #08-6047, 14 MSER 208 (2008), the district sought a dismissal on the grounds that the Parents had not tried Westfield’s program and did not provide 10 business days’ notice prior to placing Student at Curtis Blake School, as required by 20 USC §1412(a)(10)(I)(bb). The Parents, by their attorney, sent written notice to Westfield in June 2007 of their intention to make a unilateral placement for the school year commencing September 2007 and to seek public financing for the placement. The Hearing Officer denied the district’s motion to dismiss, stating that Westfield knew or should have known that the parents disagreed with the in-district placement from a previous Team meeting and a letter Parents sent to the district’s special-education director. The Hearing Officer also stated that IDEA does not mandate denial of reimbursement for a unilateral placement if written notice is not provided 10 business days prior to removal. The Hearing Officer further stated that nothing in IDEA required parents to try a proposed placement.

Comment: While correctly denying the district’s motion to dismiss, the decision incorrectly interprets 10 business days to be 10 school working days. CFR §300.11 expressly provides for the definition of “business” day to be “Monday through Friday, except for Federal and State holidays (unless holidays are specifically included in the designation of business day as in 300.148(d)(1)(ii).” On the other hand, there is a separate definition for “school day” in §300.11(c) (1,) defined as “any day, including a partial day that children are in attendance at school for instructional purposes.”

Seeking public funding for independent evaluations

One decision and one ruling concern whether a district would be responsible for funding an independent evaluation requested by parents. Ralph C. Mahar Regional School District, BSEA #08-6726, 14 MSER 195 (2008), highlights the unforeseen consequences of parties proceeding pro se. Here, the district, proceeding pro se, filed a hearing request seeking an order denying Parents’ request for an independent neuropsychological evaluation. Parents responded that they were not seeking an independent neuropsychological evaluation, but rather were requesting that the district conduct a neuropsychological evaluation. The district moved that the matter be dismissed. Noting that it would be an anomalous result for the district to move to have its own case dismissed, the Hearing Officer construed the district’s motion as a motion for summary judgment and then denied it as there was a genuine dispute as to what Parents had actually requested. In a curious twist, the Hearing Officer noted that because the district waited 13 days after Parent’s request before filing with the BSEA, the district will have waived its right to dispute the request if Parents had requested an independent neuropsychological evaluation. See 603 CMR 28.04(5) (d) (requiring district to proceed to the BSEA within five school days of the request).

In Holliston Public Schools, BSEA #08-7013, 14 MSER 252 (2008), the district requested a hearing to seek an order that it was not responsible for an independent evaluation requested by Parents. Parents had initially requested an evaluation by the district. After completing the evaluation, the district convened the Team and issued an IEP. Parents refused to sign the IEP and requested funding for an independent evaluation, but without specifying the areas to be evaluated. Holliston refused Parents’ request and proceeded to the BSEA. Although Parents chose not to participate in the prehearing stages or the hearing itself (after a number of attempts to obtain their cooperation), the Hearing Office nonetheless took pains to examine carefully the testimony and documents presented by Holliston concerning its evaluation. The Hearing Officer concluded that Holliston’s evaluation was comprehensive and appropriate.

Child Find

One decision this quarter emphasizes the extent of a district’s obligation to follow and locate a student under the “child find” provisions. In Holyoke Public Schools, BSEA #08-2892, 14 MSER 202 (2008), Student, a 16-year-old with disabilities, brought a knife to school on May 4, 2007. Holyoke assigned Student to the Holyoke Alternative Program (“HAP”) at McHugh Educational Center for a 10-day suspension with a recommendation for a long-term suspension. Holyoke was notified on May 14, 2007 that Student was in a locked DYS facility. Student remained in DYS custody through the end of May 2007. Neither DYS nor Student’s legal guardian informed Holyoke of Student’s release from DYS custody on May 30, 2007. After his release, Student did not return to school for the remainder of the school year. The Hearing Officer found that although DYS and the guardian should have an obligation to see that Student’s educational needs are meet, that failure did not excuse Holyoke’s obligation under IDEA’s “child find” provisions to follow-up with DYS or the DYS educational contact. If it had, Holyoke would have learned of Student’s release. As a result of Holyoke’s failure to contact DYS, the Hearing Officer found that Student was entitled to compensatory education for the period from June 1 through June 18, 2007, the end of the school year.

CONCLUSION