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: 1st Quarter, 2006, by Robert K. Crabtree

Introduction

The first quarter's decisions (14 from January through March) and three others from the last quarter of 2005 cover a wide variety of issues. Included are: a clear reminder that social/emotional needs alone may qualify a student for an IEP (Dighton-Rehoboth); an examination of the protections offered by Section 504 in the wake of Congress' s narrowing of rights for students involved in disciplinary proceedings (Greater Lowell; also see Franklin County); some cautionary reminders for parents who withhold cooperation from school districts without good reason (Worcester and Hampden-Wilbraham); decisions examining whether a vocational school's admission-application process was discriminatory as applied (Bridgewater-Raynham and Fairhaven); three disputes between districts over who must pay for a placement (Worcester and Douglas, Cohasset and Norton, and Holyoke and Mt. Greylock); two prehearing rulings on motions in cases that involve serious emotional disorders—to see psychiatric and police records and to join various state agencies as parties (the Plymouth cases); a decision ordering payment for a unilateral placement until the district changes its program (Hanover); and a decision that parents could not claim "stay put" based on a district's mistake (Springfield). Late-comers from the last quarter of 2005 included in this commentary include: a decision rejecting a parent's efforts to have her three-year-old child with autism educated exclusively at home because of medical concerns (Ipswich); a decision ordering a multiple-year outside placement as compensatory education for a student whose district ignored its own service providers' recommendations (Boston, BSEA #05-3623); and a decision upholding a private provider's use of physical restraint to manage the aggressive behaviors of an adolescent with autism and ADHD (Boston, BSEA #06-2007).

Can a district decline to provide an IEP based on social/emotional needs if the student is making reasonable academic progress?

Dighton-Rehoboth Regional School District, BSEA #06-2145, 12 MSER 100 (2006), concerns a 17-year-old student with anorexia, depression, and post-traumatic stress disorder due, at least in part, to having been "mistreated" by her stepbrother. Although the stepbrother was removed from her home, he continued to attend the same high school. The student suffered a great deal of stress and anxiety around any contact with the stepbrother and she perceived the high school as not taking sufficient steps to protect her. She was hospitalized in connection with her emotional and medical issues and, following that, tutored at home.

The district claimed this student was ineligible for an IEP, arguing that "because [she] historically has been a good student, and has achieved good grades with grade-level material in tutoring, her disabilities do not ‘adversely affect her educational performance.'" Leading up to the hearing in the matter, the district made an offer of judgment to provide a 504 plan that would give the student certain supports to help her return to the Dighton-Rehoboth ("D-R") high school.

In her decision in this matter, the Hearing Officer stated clearly that students with emotional disorders may be entitled to an IEP even if they make reasonable academic progress. She wrote:

Academic achievement within the tutoring context is not a complete measure of effective progress when the child, as a result of her disability, does not attend school . . . . The ability to attend class on a daily basis, to behave appropriately, to participate in group learning and class discussions, and to interact with teachers and peers both in and outside of class are all skills that are fundamental to the educational experience, the purpose of which, for students with disabilities, is to "develop student's individual educational potential," 603 CMR 21.01(3), as well as to equip students with disabilities with the knowledge and skills to "be prepared to lead productive and independent adult lives, to the maximum extent possible." 20 USC § 682(c) (5)(A). Any or all of these skills may quite properly constitute an IEP goal or objective, and may be addressed by specialized instruction and/or a related service.

That said, the Hearing Officer found that neither the proposed 504 plan nor an IEP could meet the student's needs within the D-R high-school setting, first because the high school was too large and there was no evidence that there were any smaller groupings of appropriate peers with whom she could be grouped. Second, the Hearing Officer credited the student's testimony that she would not feel emotionally safe in returning to the high school and feels that she would not be treated fairly there. "Whether or not Student's perceptions of the school are accurate," said the Hearing Officer, "I am persuaded that they are sincere and are a barrier to her return to school." Accordingly, the Hearing Officer ordered D-R to develop an IEP incorporating the recommendations of therapists for accommodations to enable the student to move from home tutoring to a school environment and to locate or create a placement "that can provide a small, nurturing setting that can implement the IEP."

Cases in which students with serious emotional disabilities are able to achieve reasonable academic progress are relatively rare, since grades and progress usually suffer along with the student's emotional state. It is good, therefore, to have a decision in the books unequivocally confirming the right of such a student to an IEP regardless of his or her academic progress.

It is also encouraging to see a Hearing Officer give definitive weight to a student's description of her own needs and fears. While not every case will present as clear a reason to honor the student' s preferences, Hearing Officers should at least pay careful heed to a student's expressed concerns where, as here, the student has been the victim of abuse at the hands of a fellow student.

Two disciplinary cases: using 504 where Congress limited access to the protections of IDEA

In its amendments to IDEA in 2004, Congress significantly narrowed access to the protections given students with disabilities who are caught in a disciplinary process. In the student's circumstances described in Greater Lowell Technical High School, BSEA #06-2895, 12 MSER 12 (2006), the Hearing Officer found that the IDEA 2004 limitations effectively block the student from protection under IDEA, but then opened another door by examining the rights that may be available nonetheless under Section 504 of the Rehabilitation Act.

The student in Greater Lowell had not been identified as having special-education needs and had not been referred for an evaluation when he was found in school in possession of marijuana and a prescription drug (without a prescription). The parents' attorney wrote asking for an evaluation after the disciplinary proceedings had begun. Lowell expedited the evaluation and found him to be ineligible for an IEP. The Team did, however, note a diagnosis of ADHD and recommended that Lowell 's office in charge of administering Section 504 compliance provide the student with a 504 plan and described 14 accommodations for consideration. Instead, the district expelled the student and did not complete a 504 determination because, it said, as an expelled student he was no longer eligible for such a determination.

Greater Lowell discussed the conditions under which a school district can be deemed to know that a student is a "child with a disability" under IDEA 2004 when the student is not already on an IEP. Under the 2004 amendments, a district is deemed to have knowledge only if: (1) the parent expresses concern in writing to the child's teacher or to supervisory or administrative special-education personnel that the child is in need of special-education and related services; 2) the parent requests an evaluation of the child; or 3) the child's teacher or other personnel of the LEA has expressed specific concerns about a pattern of behavior demonstrated by the child, directly to the director of special education or to other supervisory personnel of the agency. 20 USC 1415(k)(5)(B). Those conditions must have existed before the student's behavior triggering the disciplinary process in order for the "deemed knowledge" to provide the student with IDEA's protection.

Prior to the IDEA 2004 amendments, a district was deemed to have knowledge that a student was a "child with a disability" if "the behavior or performance of the child demonstrated the need for such services." IDEA 1997. It was not required that the behavioral concerns be about a " pattern " of behavior related to the disciplinary infraction. IDEA 2004, 20 USC 1415 (k)(5)(B). Nor did the IDEA require that concerns be reported in writing to the director of special education or other supervisory personnel of the agency. Rather, reports could be made to any special-education personnel and did not need to be in writing to have effect.

The Greater Lowell Hearing Officer found that none of the three conditions for "deemed knowledge" had been met. The parents did not write to the teacher or any supervisory employee of concerns that the student may need special education, and they did not request an evaluation. That the student's teachers may have thought he had a disability, regardless of whether they discussed the issue with colleagues or the student's parents, was not enough. It was also insufficient, he found, that some of the student's teachers had communicated concerns to a guidance counselor about the student's difficulties with attention, organizational skills, etc. in the course of completing questionnaires to assist the student's pediatrician in an assessment of possible ADHD. The information, he said, was given to a guidance counselor, who was not a "supervisor," and may not have reflected a "pattern of behavior" in any event; so again, there was no deemed knowledge under the statute.

The parents' attorney did request an evaluation after the disciplinary procedures were initiated. The Hearing Officer determined that Lowell then complied with IDEA by completing an expedited evaluation of the student and convening the Team to act on the results. He held that after the Team determined the student to be ineligible for an IEP on the basis that he had made effective progress regardless of any possible disability, Lowell owed no further obligations under IDEA until and unless that determination was overturned in an appeal.

Despite Student's ineligibility under the IDEA, however, the Hearing Officer held that the student was entitled to an eligibility determination under Section 504 prior to his expulsion. He ruled that Lowell should have made a Section 504 eligibility determination prior to completing any disciplinary action since the district had reason to believe Student was eligible for accommodations under Section 504. (Section 504 imposes none of the specific requirements that are now part of IDEA for a district to be deemed to "know" that a student has a disability.) In fact, Student's IEP Team had recommended a 504 plan for Student when it determined Student's ineligibility under IDEA and had even suggested 14 specific accommodations be made, but under Lowell's protocols, an official 504 determination had to be made by another office within the district.

The ruling in this case opens the door to an alternative source of protection but it is not clear how far that protection will extend. The decision only orders Lowell to complete an eligibility determination under Section 504 and, if Student is found eligible for protection, then to "determine whether any modifications should be made with respect to its discipline of Student." The Hearing Officer does provide a very helpful footnote (footnote 13) citing a number of authorities for the proposition that Section 504 affords a right to a free appropriate public education for a student with a disability, and an OCR statement to the effect that, in fair due process, a student should be allowed to continue in his placement at least until the process is concluded, but whether and to what extent Section 504 will support other specific protections, such as continuing educational services even if the student with a disability is suspended or expelled, remains to be developed in further decisions. It seems clear to us that if a student's behavior is linked to his disability, then Section 504 should protect him from being excluded because of that behavior, should require continuing educational services even if he must be excluded from school for a time, and should require as a reasonable accommodation a functional behavioral assessment and the implementation of a positive behavioral plan and other interventions that will help the student behave appropriately despite his disability, so as to preserve his access to public education.

The key practical lesson of the decision for parents and their advocates is that they should expressly invoke the Section 504 process in addition to the process provided under IDEA in every case where, because of a disability, a student's behavior may breach the school's disciplinary code. Communications about such issues should be made in writing and should explicitly raise a concern about the possibility of a disability and its possible link to problematic behavior. Moreover, even if the primary recipient of a communication is to be a teacher, school psychologist, guidance counselor, or some other staff employee, at least a "cc" of that communication should be sent to the special-education director or superintendent.

This decision presents in stark terms the consequences of Congress's amendments to IDEA in 2004 for students with disabilities who are caught up in disciplinary proceedings. The requirements to hold a district accountable for knowing of a student's disability seem Kafka-esque in their insistence on strict technical requirements. Whether or not a parent has a fine-print brochure somewhere in his files explaining that a communication must go in writing to a supervisor in order for the district to be deemed to have received that communication, we would guess that the vast majority of parents, especially in the stress of a disciplinary action, would believe that communicating with a teacher or other professional is enough to put the district on notice. Moreover, common sense would lead a parent to believe that if teachers express concern about behavior, lack of educational progress, or a possible disability, that should mean that the school district is aware of those concerns. But, as a result of Congress's IDEA amendments, a district may now disclaim knowledge unless it comes to a supervisor in writing and with contents that satisfy specific technical requirements.

The Hearing Officer in Greater Lowell has taken an important and creative step in setting out the possible protections offered by Section 504. We hope that in future cases, those protections will be clearly and expansively defined so that students and parents will not have to await a new Congress to rethink IDEA or a court to find its restrictions discriminatory.

In another disciplinary case, Franklin County Technical School, BSEA #06-2301, 12 MSER 18 (2006), a student with a 504 plan but no IEP was provided with protections following the procedures that applied under the pre-2004 IDEA. In the course of her discussion of the matter, the Hearing Officer noted that she did not have to decide whether the current version of IDEA should be applied, since the older version that the district did apply extended more protection to students.

The case had to do with a student with attention-deficit disorder who had allegedly set a fire in a bathroom in the school. The Hearing Officer noted that the district's expert testimony and the student's behavioral and academic record confirmed that the student's form of ADD was of the "inattentive" type rather than involving impulsivity, and the 504 plan was aimed only at educational rather than behavioral issues. On that basis she upheld the district's determination that the alleged fire-setting was not a manifestation of his disability and that he could be subjected to the same discipline as non-disabled students for his behavior.

The result is not surprising, given that the parents presented no live expert testimony to counter the report and testimony of the school's evaluator. Instead, they provided only the affidavit of a physician, which the Hearing Officer discounted for several reasons: apparently, the affidavit did not explain how long the doctor had treated the student, what the basis of his opinion was, or what experience or training he had in diagnosing or treating ADHD. Moreover, the Hearing Officer pointed out that the affidavit gave only a general opinion that the impulsivity that results from ADHD "could manifest itself in destructive behavior." The doctor did not explain how the student manifested impulsivity—a question that was at the heart of the matter—and did not make any statements about the specific behavior the student was charged with in the disciplinary proceeding. As described, this affidavit was not enough by any stretch to overcome the testimony of a school's expert who clearly laid the foundation for his expertise in the assessment of persons with ADHD and who systematically tied his opinion to evidence from his evaluation of the student, his interviews with school personnel and parents, and his review of the records. In a footnote, the Hearing Officer quoted the school's expert's description of his sources of information, in which he indicated that he had sought permission to speak with the student's psychiatrist—the author of the affidavit—and had been denied.

The dilemma faced by counsel in a case like this was obvious. The student was the subject of a criminal investigation. An attorney advising that student in an administrative proceeding like this had to be careful to avoid having the student provide information that could compromise his defense of a potential criminal action. Whatever the reasons, though, without presenting more explicit and well-founded expert testimony—both in live testimony and by way of detailed report—to support the link between this student's disability and the behavior he was accused of, the student could not have won this case.

Parents' lack of cooperation was fatal to their aims

Worcester Public Schools, BSEA #06-2557, 12 MSER 106 (2006), represents the after-shock of an earlier decision in which the BSEA had found Worcester's proposed program for a young girl with autism and pervasive developmental disorder to be appropriate with certain ordered modifications, including a requirement for Worcester to employ an outside consultant acceptable to both parties. See, Worcester Public Schools, BSEA #05-2967, 11 MSER 103 (2005) and Commentary at 11 MSER C-17 (2005). That earlier case involved a past failure on Worcester 's part to address self-injurious behaviors. The Hearing Officer had noted a vast improvement in a new program that Worcester was then offering and said that Worcester 's failures in the past were "history."

In the current round, the student's parent asked the Hearing Officer to order an outside placement because, she claimed, Worcester had failed to implement the BSEA's previous order to hire a consultant acceptable to both parties. As far as a reader can ascertain from the abbreviated description of the record in this decision, it appears that Worcester had ultimately hired a consultant, though not one that the parent expressly approved, before the hearing began. It also seems that the parent may not have responded to Worcester 's proposal of a consultant and did not propose any possible consultants herself after the earlier decision.

On Worcester's motion for a directed verdict at the close of the parent's evidence, the Hearing Officer, considering the parent's evidence in its best light (as required for a directed verdict), found that the parent had not carried the burden of proving that Worcester's alleged non-compliance with the order for a mutually agreeable selection of a behavioral consultant would result in a denial of FAPE. Even assuming that Worcester's employment of a consultant without the consent of the parent violated the earlier BSEA order under the circumstances, the Hearing Officer decided that such non-compliance would not cause the program to be less than a free and appropriate public education and was not, therefore, grounds to order an outside placement.

It is difficult for parents to understand that a poor history of failed efforts by a school district to meet a student's needs does not by itself support a finding that the district is unable to provide FAPE in the future. In the first round between these parties, the parent was unable to convince the Hearing Officer that Worcester' s past failures rendered the district's then-proposed program, albeit new and improved, suspect or unworkable. The Hearing Officer tried to ensure that Worcester would be able to implement its new program by ordering the hiring of an outside expert consultant; she further tried to provide a bridge toward improving relations between the parties by ordering that the outside consultant be mutually acceptable. However, it seems that, following that decision and order, the parent may have passively resisted the process by not responding to Worcester 's efforts to nominate a consultant and made no nominations of her own. If that is so, it is not surprising that the Hearing Officer would refuse now to find a possible failure by Worcester to find a mutually acceptable consultant to be an adequate reason to throw Worcester' s program out entirely and order an outside placement.

On another note, the Hearing Officer noted that the parent's testimony that the student was continuing to exhibit self-injurious behaviors and was not yet toilet-trained did not prove a lack of FAPE because there was no expert evidence that the student was capable of making materially better progress or that Worcester was using inappropriate behavioral techniques or employing ill-trained staff. Thus, this decision joins the many in which parents have lacked the essential (critical though not necessarily sufficient) ingredient to make their case: a credible expert or experts with sufficient experience, training, and professional qualifications to offer opinions on a student's cognitive potential, the nature and consequences of her disabilities, and the types of program, services, and placement that are necessary for her to progress effectively, together with first-hand knowledge of the district's program and the ability to articulate why that program cannot provide FAPE. A case like this cannot be won on a parent 's testimony alone. (This parent apparently also had the student's pediatrician testify by telephone, but that, too, is typically insufficient to make the case, since an M.D. ordinarily lacks the educational and/or neuropsychological or other relevant expertise to offer critical opinion testimony.)

More about the consequences of not cooperating; also, a misreading of obligations around independent evaluations

In another parent-cooperation case, Hampden-Wilbraham Regional School District, BSEA #05-4878, 12 MSER 71 (2006), the Hearing Officer ruled on a number of prehearing motions, the most important of which was the district's motion to dismiss based on what it characterized as the parents' efforts to interfere with the district's efforts to have a neuropsychological evaluation performed.

In an earlier phase of the case, the Hearing Officer had authorized the district, over the objections of the parents, to conduct a comprehensive evaluation. As part of that order, the parents were required to cooperate and not to interfere with the district's evaluators. While the parents had cooperated with other district evaluators following that order, both the parents and their attorney had written letters to the district's psychologist that, the district argued, had effectively blocked the psychologist's evaluation. The attorney's letter had specified several conditions for the testing (e.g., that all testing be taped and that all question and answer forms be provided after testing to the attorney), and the parents had written that they were opposed to the psychologist's involvement with their son "as an issue of professional ethics" and that the psychologist would find himself "a witness in a civil matter before the Court in Boston regarding [his] prior involvement with [their] son."

The Hearing Officer found that the two letters could have had "no purpose other than to interfere with [the psychologist's] evaluation of [the student]. [They] attempt to impose terms and conditions on the neuropsychological/psychological evaluation sought by [the district] and ordered by the Hearing Officer; to intimidate, harass and threaten [the district's] chosen evaluator; and to insure that such evaluation will not take place." He found this behavior to be "contemptuous" and to warrant the imposition of a serious sanction.

As a remedy, the Hearing Officer stopped short of dismissing the entire appeal as requested by the district but, instead, reduced the amount of time, looking back, for which the parents could seek relief: a reduction from three years to two. (The parents filed the appeal in April 2005 before IDEA 2004 became effective. Before July 1 of that year the statute of limitations was three years; after then, IDEA required a two-year statute of limitations.) He went on to say that if the parents interfered any further in efforts to evaluate the student, he would dismiss the entire appeal.

Whatever concerns the parents in this case may have had with the school's chosen psychologist, they were clearly playing with fire. If there are specific and credible grounds on which parents could reasonably try to have an evaluator prevented from testing a student, especially if, as here, a Hearing Officer has authorized the evaluation, those concerns should be brought before the Hearing Officer with a request that the district be ordered to engage a different evaluator, rather than taking direct steps to try to convince an evaluator not to do the work. No doubt it would be a rare case in which that would be a successful request, since a Hearing Officer would give great leeway to a district's choice, but if, for example, there were something like a provable history of a child's traumatic reaction to being tested by a certain evaluator, a Hearing Officer might rule for the parents. If, however, the parents' objection is that the district's evaluator is biased, or is not competent, or is unpleasant to talk with, or some other ground that doesn't go to the safety and welfare of the child in the testing situation, parents need to let it be. Efforts to interfere, as this Hearing Officer has made dramatically clear, will backfire on the parents' cause before the BSEA.

On another matter, in his discussion of an unrelated motion in this same set of rulings, we think the Hearing Officer misconstrued the scope of a parent's right to have a district convene the Team when served with a report of an independent evaluation. The parent had complained that the district did not convene the Team within 10 school days after receiving an independent evaluation from their expert. The Hearing Officer rejected their claim, interpreting those regulations as requiring the convening of the Team within the prescribed 10 school days only if the independent evaluation was developed after a parent disagreed with the school's evaluation in a comparable area. Any other independent evaluation was, he said, subject only to the requirement of the federal regulations that such an evaluation be considered when a Team considers the district's own evaluations. (34 CFR 300.502(c)(1)).

The applicable state DOE regulation, 603 CMR 28.04(5), for the most part details the procedures for a parent to obtain an independent evaluation at the school district's expense. In that vein, the provision states at the outset: "Upon receipt of evaluation results, if a parent disagrees with an initial evaluation or reevaluation completed by the school district, then the parent may request an independent education evaluation" and goes on to outline the protocol for requesting and receiving district support for such an evaluation.

In another provision, the regulation states: "The parent may obtain an independent education evaluation at private expense at any time." 603 CMR 28.04(5)(b). This language obviously identifies an alternative route by which an independent evaluation may be produced without requesting the district to pay for it.

Finally, the regulation states: "Within ten school days from the time the school district receives the report of the independent education evaluation, the Team shall reconvene and consider the independent education evaluation and whether a new or amended IEP is appropriate." 603 CMR 28.04(5)(f). This provision makes no distinction between the two alternative sources—parent-paid and district-paid—through which an independent evaluation may be generated. This should be (and in most cases in which we are involved is) interpreted by parents and districts alike to mean that whatever the funding source, the delivery of an independent evaluation triggers a responsibility to convene the Team to consider its results.

Can a public admission-by-application school disguise a discriminatory policy with facially neutral admissions criteria and/or administrative foot-dragging?

Public schools, such as regional vocational-technical schools, that require a student to satisfy certain application criteria for admission are in a strong position, if they so choose, to subtly screen out students and/or discourage them from applying. In Bridgewater-Raynham Regional School District and Bristol Country Agricultural High School, BSEA #06-0256, 12 MSER 4 (2006), it is good to see a Hearing Officer exposing some of the techniques such a school can use toward that end, laying the groundwork to scrutinize them for possible violations of students' civil rights.

This decision considers, on cross motions for summary judgment and Bristol Aggie's motion to dismiss, whether Bristol Aggie may have violated section 504 of the Rehabilitation Act of 1973 and 42 USC § 1983 ("Section 1983") when it denied ninth-grade admission to an eighth-grade student who suffered from school phobia and depression. After following the standard admission procedure, Student's parents learned—not from Bristol Aggie itself, but from personnel at Student's current regional school—that Bristol Aggie had placed Student on a "wait list" because of a record of school absences in her seventh-grade year. Parents argued, pursuant to Section 504, that Bristol Aggie denied the student admission because of her disability, which had caused her school absences. They also argued that Bristol Aggie had deliberately failed to notify them of its decision not to grant admission in order to circumvent the appeal process that was available under Bristol Aggie's admission policy.

Bristol Aggie argued that its admissions policy was neutral and that the student simply did not achieve enough points under their admission criteria, including her previous record of school attendance. The Hearing Officer found that while the admissions policy may be neutral on its face, Bristol Aggie's consideration of the student's absences with knowledge that they were likely caused by the student's emotional disability may constitute wrongful discrimination. Accordingly, she denied Bristol Aggie's motion to dismiss.

Because material facts were in dispute, the Hearing Officer denied the parties' cross-motions for summary judgment, leaving for hearing the question whether the admission policy had been erroneously or intentionally applied to Student in such a way as to exclude her because of her disability. We would expect that at the hearing in this matter, the Hearing Officer will scrutinize Bristol Aggie's explanation for rejecting Student's application on the basis of her seventh-grade absences, which it knew stemmed from her disability, and, even if the Hearing Officer concludes that the district's motivation was not discriminatory, ask whether future absences may be minimized with reasonable accommodations as required by Section 504 and order her acceptance into the program with those accommodations.

In addition to alleging discrimination due to her disability, Student contended, under Section 1983, that Bristol Aggie's failure to notify her of its admission decision in a timely manner caused her to be unable to make an appropriate appeal, thus breaching her right to substantive due process. Student asserted that Bristol Aggie has a custom or policy of failing to notify unsuccessful candidates for admission of their status and appeal rights. The Hearing Officer found that the student had stated a claim that was supportable under Section 1983 and denied Bristol Aggie' s motion to dismiss on this ground too.

It seems highly unlikely to us that Bristol Aggie' s failure to look behind the student's absences to explore a causative link with her disabilities and to consider whether the district could accommodate her disabilities reasonably, especially in combination with its failure to communicate its decision directly to the student and her parents, leaving them without the ability to appeal the decision under the rules of the district, was innocent. Far more likely, the district was using pretext and delay to avoid admitting a student who would require some accommodations and possibly some related services in order to succeed. In this decision the Hearing Officer has certainly ruled correctly to preserve the student's claims. While she could not bring an end to the proceeding under the rules governing summary-judgment motions, her articulation of the student's arguments and claims was clear enough that, we hope, there will be no further need for litigation. The district having read the handwriting on the page in this case should now bend its resources in good will toward the interests of the student rather than try to defend what we believe is ultimately an untenable position.

In this same decision, the Hearing Officer ordered joinder of the state DOE on her own motion. (The parents had filed but then withdrawn a motion for DOE joinder.) She took this step to ensure that if, after hearing, she were to uphold Bristol Aggie 's denial of admission to the student, she could effectively address the question of what alternative program/placement can be ordered.

The Team had determined that this student needed a small, structured vocational program. State law, however, apparently prohibits a regional school district like the one the student was attending from creating such a vocational program. Since the state itself was thus the agent thwarting implementation of the Team's recommendation within the district, the Hearing Officer determined that DOE must be joined as the agency that is the "ultimate guarantor" of FAPE. How this plays out may ultimately be the most interesting aspect of this case. Whatever DOE may be ordered to do if the matter goes that far, though, perhaps the legislature should be asked to re-examine the limitations placed on regional school districts against creating vocational programs of the kind recommended for this student. A rational system of resources for students with special educational and related needs ought to expand rather than narrow the array of solutions to their needs.

Note: A different Hearing Officer, later in the first quarter, handled another case in which Bristol Aggie was also alleged to have discriminated against a student because of his disability. In Fairhaven Public Schools, BSEA #05-5469, 12 MSER 93 (2006), the parents had claimed that the admissions criteria were facially neutral but discriminatory in effect. The Hearing Officer dismissed the parents' claim. He found that the student—a 17-year-old high-school student—had applied two years previously for admission to Bristol Aggie and had been denied admission because he had failed to earn enough points under the program's admission criteria. The Hearing Officer noted that 16 students with IEPs had been admitted that year, that 25 students with IEPs and with higher admissions points than this student had also not been admitted, and that at least 25 regular-education students with higher admissions points than this student had also not been admitted. He distinguished Bridgewater-Raynham on the grounds that the parents in that case had alleged that the student had not been awarded points because of absences that Bristol Aggie knew were linked to her disability, while in the student's case in Fairhaven, "no nexus between his disabilities and BCAS's decision to put him on the waiting list has been demonstrated or alleged." The lesson? Be specific. A general theory to the effect that a practice or policy has discriminatory effect will not typically make it past a dispositive pre-hearing motion, and a practitioner thus needs to tie the student's particular situation to the policy or practice in question.

Where do you live? Who should pay? Do battles between districts over responsibility for funding of placements have to leave a student without services until they are resolved?

Three of this quarter's cases deal with the assignment of fiscal responsibility among school districts: Worcester Public Schools and Douglas Public Schools; Cohasset Public Schools, Department of Education, and Norton Public Schools; and Holyoke Public Schools and Mount Greylock School Union 69.

In Worcester Public Schools and Douglas Public Schools, BSEA #06-1302, 12 MSER 98 (2006), the student lived in a group home in Worcester, funded by the Department of Social Services, and his mother lived in Douglas. Although financial responsibility is based on the residence of the Parent/Guardian, Douglas argued that it should not be held responsible for Student's special-education program because the programmatically responsible school district, Worcester, had not included Douglas in determining Student's placement. Douglas relied on 603 CMR 28.10(4), which, where financial and programmatic responsibilities are shared, requires that the school district where the student resides invite the school district where the parent resides to participate as a member of the IEP Team. Because it was not so invited, Douglas argued that it should not be held fiscally responsible for the student's placement. The Hearing Officer ruled against Douglas.

She noted that under the applicable statute the programmatically responsible district— Worcester —has the sole authority to select the appropriate services or program, and the fiscally responsible district— Douglas —may not withhold financial resources if it disagrees with the plan developed by the programmatic school district. The gist of her reasoning appears to be no harm, no foul— i.e. , that even if Douglas had been invited and participated in the Team deliberations, it could not overrule Worcester in the designation of a program or placement.

The Hearing Officer explained that requiring an opportunity for the fiscally responsible district to participate "is an attempt to secure the most comprehensive student information possible, not to inject financial considerations into educational decision making." Thus, while it was regrettable that Worcester had not invited Douglas to participate in Team meetings, that failure did not shield Douglas from financial responsibility. (The Hearing Officer also noted that the equities did not favor Douglas in any event, as the district appeared to be motivated not out of sincere interest for Student's well-being but solely by the goal of avoiding the costs of student's placement.)

In Cohasset Public Schools, Department of Education and Norton Public Schools, BSEA #05-3397, 12 MSER 8 (2006), an attorney living in a different district from the one where the student's parent resided was appointed temporary legal guardian for a cognitively impaired 19-year-old girl. The 90-day appointment ran from November 20, 2003, to February 18, 2004. The attorney continued to act as the student's legal guardian, however, past the February 18th expiration date, to April 2, 2004, at which time he was appointed as a permanent guardian. Under the applicable regulations, the residence of the student's guardian was to be the fiscally responsible school district for the student. Because of the lapse in the attorney's position as guardian, Cohasset (the district in which the attorney/guardian lived) argued that the "move-in" law provided that it no longer be fiscally responsible for Student's education.

The lapse of guardianship was cured by the court assigning permanent co-guardianship to the student's father and the attorney nunc pro tunc to February 18, 2004. However, because of the dual appointment of guardianship to individuals living in different districts, the Hearing Officer was asked to determine which district (Norton, where the father lived, or Cohasset, where the attorney lived) was fiscally responsible for Student's education during the 2004–2005 school year. Cohasset maintained that Norton was fiscally responsible since Norton was the district where "Student grew up and to which she has the most ties and where she would reside if she were to leave the May Center." The Hearing Officer disagreed, holding that both the move-in law and the relevant regulations indicate that fiscal responsibility is to be based upon the residence of the guardian or parent.

In that light, the Hearing Officer reasoned that a student's having co-guardians is analogous to her having two parents with joint custody; according to 28.04(4)(b), such circumstances dictate that where the divorced parents live in two different school districts, "such school districts shall be jointly responsible for fulfilling the requirements of these regulations." Accordingly, the Hearing Officer held that both the father and the attorney met the definition of "parent" and thus both Norton and Cohasset were considered "communities of residence equally responsible for Student's education" for the time in question.

The Hearing Officer took the occasion to acknowledge the injustice of the outcome, commenting that it was "unfair for a district to be responsible for a student simply because a non-custodial legal guardian lives within its community." She further acknowledged the chilling effect the decision could have on other persons who might consider volunteering to act as guardians.

The attorney/guardian in Cohassset offers an illustration in point, as he is reported to have considered resigning as legal guardian for Student just to avoid making his home district responsible for the cost of the student's education. Fortunately for the student, he elected not to resign because he did not believe it would be in the student's best interest; he did, however, resign from his position as guardian of another student. As the Hearing Officer implied, the application of the law in this case highlights an anomaly that the legislature should be urged to cure.

Issues over fiscal responsibility and residency are further addressed in Holyoke Public Schools and Mount Greylock School Union 69, BSEA #06-3101, 12 MSER 23 (2006). The issue in dispute was which district—Greylock or Holyoke —was financially responsible for the day portion of a residential placement of a 12-year-old boy with "an extremely low range of intellectual function and...significant social, emotional and behavioral needs."

Student lived with his mother in Holyoke until he was placed in a DSS-funded foster home in the Greylock school district, in January of 2005. When the student moved to the foster home, Greylock became Student's responsible school district. On April 22, 2005, however, Student was again moved—this time to a Crisis Stabilization Unit in Pittsfield. (The parties stipulated that Pittsfield was not responsible for the placement at issue in this case.) It was subsequently determined by DSS that Student would be placed at the Hillcrest Educational Center, a private residential program. Neither Holyoke nor Greylock thought it should be responsible for the day-portion costs of Student's placement at Hillcrest.

At first, when DSS decided to place Student in a residential school, DOE issued an assignment of school-district responsibility on June 21, 2005, indicating that Holyoke was programmatically responsible for Student's education. Thereafter, Holyoke convened a Team meeting that generated an IEP calling for Student to be placed at the Hillcrest program. To determine financial responsibility, the Hearing Officer turned to the DOE regulations to ascertain Student's residence. Because Hillcrest is a special-education residential school and because the student's parents reside in Holyoke , the Hearing Officer explained that, according to 603 CMR 28.10(3)(b), Holyoke was Student's residence for purposes of school-district responsibility once the student was placed at Hillcrest. However, as Holyoke argued, the "move-in" law is implicated when Student moves to a different school district on or after July 1 of any fiscal year. Under such circumstances, the move-in law reallocates financial responsibility to the former community of residence. MGL c. 151B, s.5. Applying that statute in its June 21 assignment, DOE had determined that fiscal responsibility for Student belonged to the "former community of residence"—Greylock.

Neither Greylock nor Holyoke had appealed the DOE assignment of responsibility to the BSEA within the allotted 30 days. Nor had either district requested that DOE reconsider its assignment. Accordingly, the Hearing Officer held that the DOE assignment was final and could not be reviewed or otherwise altered by the BSEA. In conclusion, he ordered that the districts follow the DOE's assignment that Greylock was financially responsible for the Hillcrest placement through June 30, 2006, and that Holyoke would become financially responsible for the placement as of July 1, 2006.

The troubling fact about this case is that the student was not placed at Hillcrest until the matter was resolved. At the beginning of his decision, the Hearing Officer acknowledged that the student's placement was being delayed, to his detriment, pending resolution. While all parties involved recognized the potential harm for Student and agreed to advance the hearing date, it remains an issue that even though placement is agreed upon, financial bickering prevents students from receiving the placement and services to which they are entitled.

Again, perhaps some legislative action to clarify which district should fund services pending the resolution of a dispute like this, subject to reimbursement in the event that another district is ultimately held responsible, would help to avoid students' falling through the gaps. By analogy, under IDEA, when there is agreement about a student's need for a placement or services but a dispute among agencies concerning which should pay, IDEA provides that the student's LEA is to provide FAPE to avoid a student's loss of services while the dispute is pending. See, 34 CFR 300.142 (a); 300.142 (a)(3); and especially 300.142 (b)(2).

A student needs a residential placement because of complex mental health needs. Can the district insist on seeing psychiatric and/or police records? Can it rope in a state agency for funding?

In a pair of Plymouth decisions, each involving the same 16-year-old student with PTSD, ADHD, and bipolar disorder, the Hearing Officer dealt with school-district motions that have become common in such cases. The parents were seeking residential placement for the young man; Plymouth resisted responsibility for the full cost of such a placement. In one of the decisions, Plymouth Public Schools, BSEA #06-2584, 12 MSER 28 (2006), the district sought orders that police records, psychiatric- hospital records, and the records of a treating psychiatrist and an evaluating clinical social worker all be produced for the district's inspection. In the other, Plymouth Public Schools, BSEA #06-2584, 12 MSER 33 (2006), the district requested joinder of several state agencies, DYS, DSS and DMH, as necessary parties. The Hearing Officer handled both matters with clarity and a precision of analysis that leaves no doubt about both the grounds for and the correctness of his determinations.

Concerning the district's request to see the records of a treating psychiatrist and an evaluating clinical social worker, the Hearing Officer first considered whether the documents were likely to be relevant. If so, he said, he would submit the documents to an in camera examination.

He then found that the documents were, in fact, likely to be relevant, given the centrality of the student's mental and emotional condition to the ultimate issues in the proceeding. He explained that the object of his examination of the records in question would be to decide which records should be released to the district and with what information redacted, if any, after applying the test for overcoming the therapist/patient privilege set forth in MGL c.33, s.20B and c.112, s.135B: whether "it is more important to the interests of justice that the communication be disclosed than that the relationship between the client and the social worker [or psychiatrist] be protected .…"

This same Hearing Officer provided a textbook description of the application of these standards in an earlier case, Nashoba Regional School District, BSEA #03-0860, 10 MSER 98 (2004), which any practitioner ought to review when similar issues come up in cases involving students with serious emotional disabilities.

Concerning the district's wish to see the student 's psychiatric-hospitalization records from McLean Hospital, the Hearing Officer applied the protections of MGL c.123, s.36, which allows disclosure "upon proper judicial order," among other exceptions. Since the BSEA is not a court, and a Hearing Officer is not a judge, the Hearing Officer found no authority for him to issue an order requiring disclosure of the student's hospital records.

Regarding the district's request for police records to be released, the Hearing Officer looked to a statute, MGL c.41, s.97D, that imposes confidentiality on all reports involving the type of crime of which the student had apparently been accused. No adjudication had occurred around the student's alleged crime. The Hearing Officer pointed out that the statute provides no process or standard under which a police report could be disclosed. Even if such a process were in place, he continued, he would rule against disclosure in order to protect both the criminal process and the parties involved, saying that "it would be inappropriate for [a BSEA Hearing Officer] to infer or assume the truth of allegations made in the police report, and then to assign probative value to the police report." Exactly.

Switching, in the second Plymouth decision, at 12 MSER 33, to the issues raised by the district's motion to join DYS, DSS and DMH as necessary parties to the proceeding, the Hearing Officer ordered DMH into the case, but declined to order DYS or DSS to join.

DYS had never been involved with the student and the Hearing Officer found no reason to bring the agency into the proceeding. DSS had been involved earlier with the student, removing him from his biological family and placing him with a person who became his permanent legal guardian, but had no current involvement or any likely future involvement, so the Hearing Officer also ruled against forcing DSS into the proceeding.

DMH, however, was found to be a necessary party because it had been involved currently with the student and his family, it could offer special expertise regarding the student's profile and needs, and it might be required to provide services if it should be determined that the student could not access FAPE without them. Trying to stay clear of the proceeding, DMH argued that the BSEA should first determine, after hearing, whether the school district is responsible to provide all services, including possibly a residential placement, that would be sufficient for the student to obtain FAPE and, if not, convene a second hearing to determine if DMH can be required to provide supplemental services to achieve that end. The Hearing Officer observed, appropriately, that in light of the urgency and seriousness of the student's needs, there was no justification for waiting to decide the scope of the school district's responsibilities before bringing in DMH; if it turned out that DMH services might be necessary to ensure that the student obtained FAPE, that should follow a single proceeding in the interests of efficiency and of expediting the provision of services to the student.

Fiscal disputes like this one are, we suppose, inevitable, as are the consequent delays in providing services to students while they are argued. As long as tax cuts and limitations on school and human-resource spending severely limit the resources available to answer the needs of students with complex needs that are expensive to meet, we will continue to see battles like the Plymouth case. The BSEA's efforts to be crystal clear in the reasoning and bases for its responses to the efforts of school districts to find as many alternative funding sources as they can are admirable, but the bureau is limited by procedural and jurisdictional requirements in what it can accomplish toward streamlining results and ultimately resolving issues.

DMH argued that a certain provision of IDEA should be interpreted to mean that when state and local agencies agree about the extent of a student's needs and the services that are necessary for the student to achieve FAPE, but disagree about who should pay for what, the district is required to pay for everything pending the resolution of the fiscal responsibility issue—this in order to remove the urgency from the issue and to allow the student to receive needed services pending resolution. The Hearing Officer disagreed with DMH's reading of that provision. That, however, does not mean that the idea is not an excellent one. We suggest that the legislature be asked to create a single revolving fund, to be administered by DOE, that will enable a student to receive all needed services when there is general agreement about the extent and type of services required but disagreement about who should pay for or provide the services. Let the districts and state agencies fight it out in BSEA proceedings or in court, with the revolving fund to be repaid by the designated parties at the end; but meanwhile, let the student be served as needed.

Weighing placement alternatives: a mixed result

In Hanover Public Schools, BSEA #06-1157, 12 MSER 77 (2006), the parents were successful in seeking reimbursement for sixth-grade (2005–2006) tuition at the Carroll School. (Although the parents had unilaterally placed the student at Carroll for her fourth- and fifth-grade years, they were seeking reimbursement only for sixth grade because they and Carroll conceded that Carroll had not provided the necessary services for student to progress in the fifth grade there. Carroll restored those services—individualized Orton-Gillingham tutoring—in the sixth grade.) The dispute was the usual one: whether the district's proposed IEP for sixth grade would provide FAPE for the student.

Following a lengthy and detailed discussion of the testimony of several school and private evaluators, the Hearing Officer found that Hanover 's proposed IEP as written did not provide FAPE and that the Carroll program was appropriate as a unilateral placement for the 2005–2006 school year. However, the Hearing Officer held that if Hanover could provide a significant number of additional services and modify the IEP accordingly (developing and intensifying services within proposed inclusion classes, coordinating such services across all inclusion and separate classes, providing daily 1:1 Orton-Gillingham tutoring, providing training and consultation to service providers, and, over all, making the program language-based), that would meet the FAPE standard.

This decision was issued in February of 2006, so, with several months left in the school year, it is not clear what the practical effect would be on reimbursement for 2005–2006, that is, for how much of the year parents would be entitled to Hanover's payment of Carroll School tuition. Presumably, however, the time it would take the district to implement the Hearing Officer's specifications and for the parties to resolve any disputes that might arise in the process could allow the parents to finish the year at Carroll and get reimbursement for the full year's sixth-grade tuition. As a practical matter, one hopes that even if the district proposed a revised IEP that was arguably consistent with the BSEA decision quickly after that decision was issued, the district would have agreed with the parents in good faith and in the best interests of the student to allow the student to finish her year at Carroll rather than try to pull her back to Hanover precipitously in mid-spring.

An unfortunate sideshow in this case was the hostility of the district's school psychologist toward the parents' private evaluator, including accusing her, for example, of using a test form that had been superseded by a more recent form, not using the prescribed forms for recording some scores, etc. (The decision makes clear that when the evaluator discovered the problem with the outdated test instrument, she later updated the testing with the correct form.) Notwithstanding any technical problems with the parents' expert's testing as she considered the evidence, the Hearing Officer accepted almost all of that evaluator's observations and conclusions and based virtually all of her material conclusions on the evaluator's findings and recommendations, along with other sources. Because of the problems with some of the evaluator's testing protocols, however, the Hearing Officer ruled that the district should not reimburse the parents for the cost of this evaluator. (It should be noted that since this decision was issued, the U.S. Supreme Court has made reimbursement of expert costs a non-issue, holding that a prevailing party under IDEA is not entitled to an award of expert witness fees as part of costs. Arlington v. Murphy, 126 S.Ct. 2455 [2006].) The Hearing Officer also described some fundamental problems with the testimony of the school psychologist, finding "no depth or specificity at all with respect to actual implementation of her recommendations in Hanover ."

Can a parent hold a district to a service it has begun to deliver by mistake?

In Springfield Public Schools, BSEA #06-1175, 12 MSER 1 (2006), the parents had arranged to unilaterally place their daughter at a private special-education school for students with learning disabilities. They rejected Springfield 's proposed inclusion program and, at the end of August 2005, opened a proceeding at the BSEA. Coincidentally, on that same day, in what turned out to be a bureaucratic snafu, Springfield notified the parents in writing that the student would be assigned to the White Oak School (a private special-education school for students with language-based learning disabilities), and, a few days later when the school year began, Springfield began to transport the student to and from White Oak. As it turned out, someone in Springfield's bureaucracy had made a mistake; Springfield had not intended to send the student to White Oak but planned, instead, to defend its proposed IEP for an inclusion program.

Springfield's attorney asked for and, unopposed, received an extension of time to answer the parents' hearing request. The district's answer was filed on September 19. On that same day the parents' attorney informed Springfield 's attorney that Springfield had, in fact, placed student at White Oak and, further, that student's mother had told him a school official had called to tell the mother that student had been placed there. Apparently, this was news to Springfield's attorney.

Subsequently, Springfield filed affidavits with the BSEA, stating that it had never placed student at White Oak and that no school official spoke to the parents or told them that the student was to be placed at White Oak. The affidavits described the process by which Springfield officially places students out of district, enclosed a copy of a working educational plan that had been written by White Oak personnel, dated June 22, 2005, and asserted that the August 30, 2005, letter indicating student's placement at White Oak was an error. On September 20, 2005, Springfield sent a new letter placing student at its own program for fifth grade.

The decision denied three Parent requests. First, the parents asked the BSEA to order placement at White Oak by default on the grounds that Springfield did not file its answer to their hearing request within 10 days. Second, the parents requested that White Oak be deemed the student's last agreed-upon placement for stay-put purposes due to Springfield's having placed her there at the outset of the school year, albeit in error. Finally, the parents argued that they had relied to their detriment on Springfield's erroneous White Oak placement letter and asked that Springfield be ordered to maintain that placement to avoid the disruption the student would suffer if she were required to move to Springfield's program.

Regarding the district's failure to file a response to the parents' hearing request within 10 days, the Hearing Officer pointed out that Springfield 's attorney had been granted an extension to which the parents' attorney had not objected. Enough said. He went on, however, to note that neither IDEA nor state law describes any consequences for a failure to file a timely response to a hearing request and observed that for Springfield to lose on this issue, effectively by default, would be an "extreme and unjust remedy." Whether there is any implicit or explicit authority in the BSEA to deal with a party's failure to respond at all or its filing of an insufficient response to a hearing request needs to be determined in another case where the question is a live issue; the extension granted by the Hearing Officer in this case resolved the issue here. Hopefully this or another Hearing Officer will take a fresh look at the question when a determination is actually necessary to the case. We believe that the BSEA does have the authority to enforce the requirements of IDEA, including the new procedural requirements of IDEA 2004 that are aimed at developing a full understanding at the outset of the parties' positions and arguments.

As to the parents' argument for "stay put" based on Springfield 's erroneous actions "placing" the student at White Oak, the Hearing Officer refused to allow the district's error to stand as an agreed-upon placement. He said that none of Springfield 's official procedures for making out-of-district placements occurred: there was no Team decision that the student needed an out-of-district placement, no development of an IEP providing an out-of-district placement, and no sending of referral packages to potential alternative placements. He indicated that the parents should have learned the placement notice was an error by calling Springfield 's administrative offices or through the absence of the procedural steps they would have been familiar with through the placement of another of their children at White Oak.

The Hearing Officer indicated that if the parents did rely on the erroneous placement at White Oak, that reliance was unreasonable, partly because the parents' rejection of Springfield 's proposed IEP did not indicate that they sought placement at White Oak. Why, though, should parents be required to look behind a school district's action while the school district, if it truly did not understand what kind of program the parents were seeking when they rejected the IEP, is not held responsible to contact the parents and find out? The only consequence of finding White Oak to be this student's stay-put placement would have been to preserve what had become the status quo for her at the beginning of the school year until and unless the ultimate decision in the case found the district's program to satisfy the FAPE requirement. That outcome would have been fully within the scope of the BSEA's authority and, as an interim status only, would not have subjected the district to the "extreme and unjust remedy" the Hearing Officer was worried about.

The Hearing Officer, finally, ruled against Parents' detrimental-reliance claim because parents did not show they acted differently from what they had planned to do ( i.e., send the student to White Oak). He cited a number of actions taken by Parents and by White Oak before and after the Team meeting which made it clear the parents intended to have the student attend White Oak regardless of whether Springfield supported that placement. He concluded accordingly that they did not, as they claimed, actually rely on Springfield 's referral letter in enrolling the student there. To the extent that estoppel requires a finding of detrimental reliance on the erroneous action of the district, the sequence of facts cited by the Hearing Officer does tend to show that the parents would have gone ahead with the White Oak placement on their own regardless of the school district's actions, and his conclusion on this point seems right.

Also published in this quarter:

Three decisions issued late in 2005 appear in this quarter's MSER : one rejecting a request for a fully home-based program, based primarily on medical concerns (Ipswich Public Schools), one ordering Boston to provide two years of outside placement and other services as compensation for several years during which the district had effectively ignored even its own service providers' recommendations for comprehensive language-based services (Boston Public Schools), and another in which the May Center's physical restraint of a 15-year-old student was found to be appropriate (Boston Public Schools).

Home-based program vs. a combined home/school program

The Ipswich case (Ipswich Public Schools, BSEA #05-3855, 12 MSER 37 [2006]) is quite lengthy, but the gist is easily summarized. The mother of a three-year-old student with autism, an eating disorder, and asthma sought an order requiring the district to provide full-time educational services—a 30- to 40-hour-per-week program of ABA and other services—in the child's home, as opposed to a combined home/school program. The primary reason given for her request was that the student's medical vulnerability could place him in jeopardy if he were to be educated in the public-school setting. By far the majority of expert witnesses, including some who quite often support parents in efforts to obtain appropriate services in their districts, testified that the combined home/school program described by Ipswich would be safe and appropriate.

The Hearing Officer dealt respectfully with each of the many arguments and concerns advanced by the parent, who represented herself in the proceeding, but found each insufficient to overcome the district's evidence that the student could progress in the type of program offered by the district and would be adequately safe. In a key finding concerning the student's medical vulnerability, the Hearing Officer noted that neither of two physicians whose opinions the parent offered found any medical reason why a portion, at least, of the student's services could not be provided in a school setting.

Near the end of her decision the Hearing Officer wrote: "During the hearing Mother stated that she was not ready for Student to be transitioned into a school program. It was clear that by the close of the hearing she was still not ready for Student to transition into spending so many hours outside the home. . . . There is no doubt that she loves and cares enormously for her child. The question, however, is not whether Mother is ready for a transition, but rather whether Student is ready for it." She urged the district and parent to "make a proverbial ‘leap of faith' and work together on a transition plan that allows Student to avail himself of the services he desperately needs immediately."

The parent had a very heavy burden of proof to overcome in this case. IDEA's presumption in favor of the least-restrictive environment, evidence that the student had made some gains in limited school-based programming, evidence that the student had been in community environments such as McDonald's playgrounds without suffering medically, and the lack of a clear and well-founded opinion from a physician describing specific medical risks if the student were to be educated for substantial periods of time in a school facility all added up to a losing battle. The Hearing Officer did everything possible within the four corners of this decision to counsel the parent into cooperating with the program that was available. The decision seems compassionate but firm in its scrutiny of the available evidence and the application of the law. Given the line-up of experts, none of whom unequivocally supported the parent's fears about the proposed program, it is not surprising that this parent failed to make her case.

An out-placement ordered where the district ignored its own service providers

In Boston Public Schools, BSEA #05-3623, 12 MSER 53 (2006), the Hearing Officer found that the district had ignored the recommendations of a teacher and a speech and language therapist who had worked with the student; ignored the findings and recommendations of its own evaluators; and ignored much of what was promised the student in his IEP. Over a three-year period, Boston failed to implement services included in the student's IEP regarding assistive technology, an intensive reading program, a language-based program, and a transitional plan and services. In addition, Boston had consistently refused to offer this now 18-year-old student an extended-year reading program despite evaluations showing him to be "functionally illiterate."

The Hearing Officer was clearly impressed with the courage and dedication shown by personnel who tried to advocate for this student and who labored to the best of their ability to help him progress despite administrative stonewalling. She found that " Boston's administrators' willful disregard for Student's educational needs resulted in an almost eighteen-year-old reaching the second semester of his junior year in high school unable to read at a functional level." She found that he began to achieve some success only when he began to receive private reading services from Judith Wisnia of the Wisnia-Kapp reading program.

She noted that it "is surprising that Student never gave up in the face of years of educational neglect by BPS. The evidence is persuasive that this young man's resilience and determination are due in great part to the commitment and arduous work of his Mother, other family members, Ms. Wisnia, as well as those Boston providers, such as Ms. Lynch [the speech and language therapist], who over the years tried their best to help Student ‘swim against the current.'"

As a remedy for its failure to provide FAPE during two of the three years initially presented to the Hearing Officer, she ordered Boston to provide two years of compensatory education in a language-based program outside of the district. She excluded the first of the three years because "Parent knew that the program and services were inadequate but she agreed to allow Student to stay in that program at Charlestown High School for the remainder of the 2002–2003 school year."

In addition to the order for two years of funding at an outside language-based program, the Hearing Officer ordered Boston to provide transitional planning toward meeting the student's goal of entering college, implementation of assistive-technology recommendations, and three hours per day of continuing services from the Wisnia-Kapp reading program.

As practitioners, we often hear of public-school teachers and other service providers who are troubled by steps their administrators take that prevent students from accessing services, that provide less-than-qualified services to make a show of implementing an IEP, and/or that move students along from grade to grade without genuine progress. For fear of repercussions, school employees who tell parents in private that they "are right to contest the district's IEP" or that the district's program "can't really meet the student's needs" often will not speak up at Team meetings or even in testimony at the BSEA. Here, a teacher who had advised her administrators that she was not qualified to deliver a reading program (WKRP) provided in the student's IEP but was ordered to do so nevertheless had the courage to tell this to the Hearing Officer. Another provider with expertise that was central to meeting this student' s needs—a speech and language provide—also had the courage to speak up, helping to expose to a Hearing Officer the ways in which Boston's administrators had tried to cover over its systematic failures to meet this student's needs. The evidence provided by these district employees was of tremendous help to the student. It is refreshing to see such fortitude and dedication to the needs of students in the actions of these professionals.

May Center's physical-restraint practice upheld

In Boston Public Schools, BSEA #06-2007, 12 MSER 68 (2006), the Hearing Officer upheld Boston's continued placement of a 15-year-old student with autism and ADHD at the May Center, where the parent had complained of bruising and accused the May Center of administering physical restraint improperly. The district had initiated a BSEA proceeding during the 2004–2005 school year seeking to remove the student from its substantially separate program because they alleged he could not safely be educated there. The matter had been resolved then with a settlement agreement under which the student was placed at the May Center. The parent brought this later appeal, seeking an order that the May Center placement be held inappropriate and that home tutoring be provided to the student pending placement at another program, based on allegations that the May Center staff had injured the student with improper face-down physical restraint.

The Hearing Officer observed that both the local police and DSS had looked into the parent's allegations and had found that the student had been restrained in an appropriate manner, on his back for limited periods and with strict protocols for release. He found no evidence that the student had been restrained face down. While he credited testimony that the student' s parent had found bruises, bite marks, and scratches on the student, he noted that the student was prone to self-injurious behaviors that could have caused those marks, as well as the likelihood of some bruising and scratching if the student was particularly resistant to the administration of restraints.

It does appear from the record described by this Hearing Officer—especially in light of the reputation enjoyed by the May Center as a long-standing and highly professional program—that physical restraints were used as seldom as possible and in a proper manner in this case. Thus the outcome seems appropriate.

As a general rule, the hurdles a parent would have to clear in order to prove that improper physical restraint has been applied are formidable. Without someone able to testify to having witnessed improper restraint or a medical professional able to demonstrate the likelihood of improper restraint based on physical evidence, it is difficult to see how a parent, carrying the burden of proof, could convince a fact-finder that it occurred.

Conclusion

Though we may not agree with the outcomes in all cases or, in a few areas, with the legal analysis reflected in the decisions, the cases covered in this first quarter of 2006 display once again the work of a highly professional group of Hearing Officers, taking care to understand complicated student profiles, histories, and competing educational service models and approaches and rendering decisions that apply the amorphous standards of IDEA as clearly as possible. It is apparent that the Hearing Officers do their best in all cases to see through the complexities of the facts and the adversarial machinations of the parties to discern the actual child at the center of the controversy and to rule in ways that will benefit that child.

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
TTY:  617-720-3558
Email:  kcs@kcslegal.com