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, 2007, by Joseph B. Green

Out‑of‑district placements

In the first quarter of 2007, five BSEA decisions involved out‑of‑district placements. In two of the cases (Sutton and Hamilton‑Wenham), the districts agreed that the students needed out‑of‑district placements at private schools; however, the parents wanted placements in programs other than what the districts were recommending. The parents lost both of those cases. In a third case (Springfield) all parties agreed that the student needed a placement at a specific DMR group home, but the Hearing Officer had to order DOE to approve the placement. The other two out‑of‑district placement cases (Needham and Wayland) involved the more typical dispute: the district says its program in the public school provides FAPE, but the parents disagree and unilaterally enroll their children in a private school and then seek reimbursement and prospective placement at the school they have chosen. Of those two cases, the parents won one and lost one.

Cases where the parties agree that out‑of‑district placement is necessary, but disagree as to the specific placement

Sutton Public Schools, BSEA #05‑3840[1], 13 MSER 95 (2007)

In this unusual case involving a 10‑year‑old boy with a complex profile including severe expressive and receptive language delays, apraxia of speech, and related developmental delays, the parents removed the child from the public school and obtained services from the Lindamood Bell Center in Arlington, a private vendor of language and literacy‑related services. The parents added other services, including speech/language, occupational therapy, and tutoring. Sutton filed a request for hearing, alleging that the program put together by the parents did not provide FAPE and that the program proposed by Sutton—about eight hours of services in the classroom and 15 hours of pull‑out services—did provide FAPE. However, in an unusual scenario, Sutton also offered the parents an alternative out‑of‑district placement, either at the Cotting School in Lexington or the South Coast Collaborative, as alternatives to its in‑district program. The Hearing Officer found that Sutton’s proposed programs—both the in‑district and the out‑of‑district programs—were reasonably calculated to offer FAPE and therefore Sutton did not have to reimburse the parents or to write an IEP for the program that the parents had put together for their son.

As usual in cases involving unilateral placements, there was a "fundamental disagreement" over whether the student had made effective progress in Sutton’s program before the parents withdrew the child and if not, whether the IEPs proposed by Sutton were reasonably calculated to enable the student to make effective progress in the future. The parents presented well‑qualified and credible experts who testified that the student had not made effective progress and needed to be taught 1:1 until he could acquire functional verbal language and then socialize with other children in a more meaningful way. Nevertheless the Hearing Officer found that the student had made meaningful progress throughout the years in public school and that "there is no reason to believe that Student would not have made continued, and likely more rapid progress in the newly‑proposed" in‑district program. In addition, the Hearing Officer held that Sutton’s alternative proposal for an out‑of‑district placement at Cotting or the South Coast Collaborative would also have been appropriate.

The Hearing Officer found that the district’s documents "painted a picture of a child with slowly but steadily improving ability to communicate and function both within and outside the classroom." The Hearing Officer did not accept the conclusion of the parents’ experts that the child needed 1:1 teaching until he could acquire functional verbal language that would then allow him to socialize effectively. The Hearing Officer pointed out that the parents’ experts had not observed the student in his class at Sutton, nor had they observed Sutton’s proposed program.

Comment: In this case the Hearing Officer gave more weight to the testimony of the teachers and service providers who had worked with the child over a longer period of time than the parents ’ evaluators had. This hearing, which consisted of eight days of testimony, 175 parent exhibits, and 133 district exhibits, as well as written closing arguments, shows how time‑consuming a hearing can be. Although the Hearing Officer found that the district’s proposed in‑house program met the requirements for FAPE, when the district also offered an out‑of‑district private‑school placement, the parents had to deal with a moving target, which made their position even more difficult.

Hamilton‑Wenham Regional School District, BSEA #07‑2103, 13 MSER 89 (2007)

In contrast to the Sutton case, the Hamilton‑Wenham case took only one day of hearing. As in Sutton, Hamilton‑Wenham also proposed an out‑of‑district placement for the student. The district proposed a placement at the Elan School in Maine, an out‑of‑state residential therapeutic placement which the Hearing Officer found was precisely the type of placement the parents’ evaluators had recommended. At the time of the hearing, the 20‑year‑old student with a unilateral hearing loss had not been in school for four years. There had already been at least four previous hearings in which hearing officers had found the district’s placement proposals at other residential schools to be appropriate in every case, but the parents and child had never followed through. The parents and student, who were not represented by an attorney, now wanted the district to fund a placement at the Optimum Performance Institute in California, a program that helps young adults discover what they want and helps to motivate them by matching the students with celebrity mentors. This was to be supplemented by an educational program at a community college or high school in California.

Pointing out that the district could not write an IEP for a program that was not approved by the Massachusetts DOE unless there were no approved program available to meet the student’s needs, the Hearing Officer found that the Elan School was appropriate. The mother and student presented no information to the contrary and had never even visited the school.

The district asked the Hearing Officer to find that the student’s claim for public funding of the program in California was "frivolous." Such a finding would allow a court to award attorneys’ fees to the district. The Hearing Officer declined to find the claim frivolous under 20 USC sec. 1415(i)(3)(B)(III), for two reasons: first, it was not clear that the mother and student "understood the legal concept of a frivolous claim or the risk of pursuing one," and second, the district had not met the legal requirements to show that the claim "was presented for any improper purpose such as to harass, to cause unnecessary delay, or to needlessly increase the cost of litigation."

Comment: Although IDEA 2004 added the provision that districts could be awarded their attorneys’ fees if the parents pursue a "frivolous" claim, there has been no case in Massachusetts where a family’s claim for funding has been found to be frivolous. Parents should be assured that being unsuccessful does not mean their claim will be deemed to have been frivolous. As this case shows, it would take a very extreme situation to qualify as a frivolous claim that would allow the district to recover their attorneys’ fees. On the other hand, 28 USC sec.1415 provides that the parents are entitled to recover their attorneys’ fees if they prevail at a hearing, even if the district’s position is not frivolous.

The parties agree on the out‑of‑district placement but DOE refuses to approve funding

Springfield Public Schools, BSEA #07‑2498, 13 MSER 42 (2007)

In this case the Hearing Officer ordered the Department of Education to approve funding for a DMR group home after DOE had declined to approve the placement because the group home was not considered a school program. The Hearing Officer held that the services provided at DMR’s Center for Human Development (CHD) Meadow Homes in Southwick provided services that were consistent with the student’s last‑accepted IEP and that no other suitable placement was available. The almost‑22‑year‑old student was autistic, with severe intellectual impairment, a psychotic disorder NOS, a partial complex seizure disorder, and obesity. He had engaged in self‑injurious behavior that resulted in blinding himself in one eye. The last accepted IEP called for a residential placement to address communication, ADL skills, prevocational skills, and behavior and therapeutic services. Springfield sent referral packets to several residential placements, but no program would accept the student. The Hearing Officer found that "for this unique student in these unique circumstances" the DMR group home met the definition of a residential school and DOE must approve it.

Comment: A residential placement can be a split placement; that is, the day and residential components can be different programs. Furthermore, a footnote in the decision reminds districts that they can get approval from DOE to fund an unapproved program by obtaining pricing forms from the proposed placement and by following the procedure set out in 603 CMR 28.06(3)(e)(4). After the district submits the application to DOE, DOE has 10 days to notify the district if there are any objections to the proposed placement or if additional information is required.

Cases where the parties disagree as to whether an out‑of‑district placement is needed

Needham Public Schools [2], BSEA # 07‑2282, 13 MSER 54 (2007)

In a case that Hearing Officer William Crane described as "close," the BSEA held that Needham offered the student adequate language‑based instruction to address the student’s special needs, and therefore the parents were not entitled to be reimbursed for the tuition at the Carroll School for fifth and sixth grades, nor was Needham required to place the student at Carroll for future years. As in the Sutton case, Needham offered the parents an alternative IEP. Needham’s IEP for fifth grade proposed inclusion with pull‑out services for reading, speech‑language, phonics, and occupational therapy. However, the district offered the parents the option of a substantially separate language‑based program at a different school in the district "as an accommodation to Parents’ preference for a substantially separate program, which was recommended by Parents’ evaluator."

After the IEP was developed in the spring of student’s fourth‑ grade year, the student’s mother visited the separate language‑ based classroom that Needham was proposing for fifth grade, and she spoke with the teacher. She learned that the program was a two‑year program that alternated each year between covering the fourth‑ and fifth‑grade curricula and that the following year, when student would be entering fifth grade, the program would be using the fourth‑grade curriculum. The parents then rejected the IEP for the fifth grade and enrolled their son at the Carroll School.

After the student completed the fifth grade at Carroll and had started in the sixth grade, Needham proposed another IEP, again with alternative placements in an inclusion classroom and a separate language‑based classroom. Student’s mother again visited the separate language‑based program and learned that the IEP called for the student to be in a separate language‑based program for language arts and math but in an inclusion classroom for social studies, science, and any electives. Student’s mother also learned that the other students in the proposed program had different special‑education needs, and she felt that her son would not be able to keep up in the inclusion classes. Parents decided to continue their son’s enrollment at Carroll for the sixth grade.

While the student was in the sixth grade at Carroll, the parents cooperated in Needham’s requests to evaluate the student. After completing the evaluations, Needham called another Team meeting. The district proposed basically the same IEP as before, in the district’s separate language‑based program, but with the addition of a structured reading program. With their son in the middle of his second year at Carroll, the parents again rejected the proposed IEP.

In his analysis to determine whether Needham’s proposed IEP was reasonably calculated to provide the student with appropriate services to enable him to make effective progress, Hearing Officer Crane focused on the three areas most hotly disputed: (1) whether Needham offered appropriate language‑based instruction (which everyone agreed the student needed), (2) whether the student could make effective progress in an inclusion classroom with up to 24 children for science and social studies (Needham agreed that student needed a small classroom for language arts and math), and (3) whether the peer groups that Needham was proposing for the student’ s classes would prevent the student from making effective progress. These issues—the type of instruction available in the district, the amount and appropriateness of inclusion, and the composition and effect of the proposed peer groups on the student’s ability to receive an appropriate education—are frequently the issues that will determine if parents succeed in their request for funding for a private‑school placement. Testimony from expert witnesses is essential to answer those questions.

a. Did Needham have language‑based instruction in language arts and math?

Needham had four witnesses testify that its fifth‑ and sixth‑grade special‑education teachers used language‑based teaching techniques in their substantially separate classrooms. The two teachers testified that their teaching was language‑based—that is, multi‑sensory, structured, systematic, sequential, controlled for pace, and differentiated to accommodate different students. Needham had also hired an educational consultant and the school psychologist to observe the classrooms. The Hearing Officer found that these observers "gained a thorough understanding" of Needham’s substantially separate classrooms, and he found that both teachers testified credibly that they taught using the essential elements of language‑based instruction.

The parents answered with experts whom the Hearing Officer described as having "significant experience and expertise regarding students with language‑based disabilities," as well as "significant knowledge of Student as a result of their evaluations of him." These experts—a neuropsychologist and a speech and language pathologist—also observed Needham’s substantially separate fifth‑ and sixth‑grade classrooms. In contrast to Needham’s experts and teachers, the parents’ experts testified that they "did not see any language‑based instruction in the 5th and 6th grade programs." The Hearing Officer had to decide which set of credible and well‑credentialed experts would carry the day. He did so by finding both sets of experts to be credible and persuasive, but since the parents’ experts were no more persuasive than Needham’s experts, he found that Needham’s experts prevailed because the parents have the burden of persuasion (or, put another way, a tie goes to the district).

b. Would inclusion classes (22‑24 students) in science and social studies be appropriate for this student?

Needham again had the school psychologist and the educational consultant observe the classes. The inclusion teacher testified that "she uses the same skills and strategies in her classroom that are used in remedial teaching. . . ." The school psychologist and the educational consultant testified that the pace and linguistic complexity of the inclusion classes were appropriate for language‑based learning‑disabled students. On the other hand, the parents’ experts testified that "Student would be lost and confused most of the time in a classroom with typical peers. . . because of his linguistic deficits, slow response time, and attentional deficits."

The Hearing Officer found that although parents’  experts "were persuasive that the inclusion model is not necessarily the most efficient or most effective in allowing Student to learn the content of social studies and science," Needham’s proposed inclusion classes were appropriate for the student because Needham’s evidence was persuasive that the student would be able to access the curriculum and there would be other advantages for student in integrated classrooms.

c. Peer groupings

After describing the characteristics and disabilities of the students whom Needham proposed to be in classes with the student, and pointing out the disagreements between the district’s and the parents’ experts regarding the essential characteristics of the profiles of the peers who would be appropriate for the student, the Hearing Officer felt that the dispute over peer groups "is analogous to one regarding methodology." That means, and the Hearing Officer found, that the district does not have to prove that its proposed peer group is the best or even the preferred grouping for the student; the district need only show that the proposed grouping would be "consistent" with its overall responsibility to provide FAPE. Thus, although the Hearing Officer found that the parents’ experts persuaded him that the proposed peer groupings "would not have been ideal for Student," their testimony was no more persuasive than the districts’ expert witness testimony. Therefore, "the Parents did not overcome their burden of persuasion regarding this part of the dispute."

d. Minor violation of FAPE

The Hearing Officer did find that Needham’s proposed math class for sixth‑grade was not appropriate until Needham changed the proposal in January of the sixth‑grade year (while the student was at Carroll). However, the Hearing Officer found that this partial denial of FAPE for one class for five months did not entitle the parents to reimbursement or to compensatory services since the issue with math class was not the determining factor in the parents’ decision to enroll their son in Carroll, nor was it the principal issue in dispute.

Wayland Public Schools, BSEA #07‑2137, 13 MSER 71 (2007)

In this Wayland case, the BSEA ordered the district to reimburse the parents for the costs of placing their son at Reed Academy, a five‑day residential therapeutic school. As in the Needham case, above, the district and the parents agreed on the basic programmatic needs of the student but disagreed as to whether the district could provide for those needs. In the Wayland case, the district and the parents agreed that the student needed a well‑structured therapeutic program that would address his social and behavioral deficits as well as his organizational and language‑recall difficulties. The diagnoses of the eighth‑grade student included Asperger’s Syndrome, Tourette’s Syndrome, and a mood disorder with bipolar features. After trying the programs in the district, the parents reluctantly concluded that their son needed a residential program to make effective progress and to generalize skills from school to the home and community. Wayland vigorously defended the appropriateness of its therapeutic day program and adamantly contested the need for a residential placement. The student’s progress reports, according to the district, showed that he was making progress and meeting the goals and objectives set out in the IEP.

The Hearing Officer found that Wayland’s therapeutic special‑ education public‑school program was excellent, with well‑qualified and caring staff, outstanding supports and services, but that the student "showed no improvement in generalizing social skills at home, did not form meaningful reciprocal friendships and showed no improvement in the ADL skills that Wayland attempted to and could address, in a public school setting." Furthermore, the Hearing Officer found that the student’s test scores on the WISC‑IV showed "significant and consistent drops."

By the time of the hearing, the student had been at the unilateral placement at Reed Academy for six months, and the parents’ position was greatly bolstered by testimony from the director of the private school and from parents’ neuropsychologist, who observed him at Reed and at Wayland’s program. Despite some initial rough spots in the student’s transition to the private school, these witnesses could cite specific examples of areas where he had dramatically improved at the private school. Since he was not able to make these gains in Wayland’s program, these changes provided persuasive evidence that Wayland’s program, however extensive and well‑meaning, did not provide the student with FAPE. Witnesses testified that he made friends at Reed, and Wayland had to admit that he was able to develop those friendships because he was living with peers and that this advantage could not be duplicated in any public‑school setting. The neuropsychologist reported observing improvements in the student’s adaptive functioning and observed him actively participating in class, "less lethargic and more animated." Student’s psychopharmacologist testified that after the private‑school placement he noted "marked improvement in [Student’s] mental status and his interaction with his family on weekends," so much so that the doctor was able to substantially decrease and, in some cases, eliminate medications that he was taking.

The Hearing Officer ordered Wayland to reimburse the parents for the private‑school tuition and to write an IEP that provided for their son to continue at Reed Academy.

Comment: This case shows that if the parents are able to pay for a unilateral placement and then seek reimbursement, there can be strong evidence presented about the child’s progress at the private school that can help to show that the public school program did not provide FAPE. It is important for parents to have credible and well‑qualified expert witnesses, as well as the private school witnesses, and these experts should observe the student in both settings.

Compensatory services and remedies

Quincy Public Schools,BSEA #05‑4960, 13 MSER 4 (2007)

This was an unusual case because the district and the parents agreed that the district was not providing FAPE for the seven‑year‑old hearing‑impaired student and had not implemented the IEP that it had proposed. The student’s pediatric psychologist, director of the Children’s Hospital clinical program for deaf and hard‑of‑hearing children, testified that the proposed IEP included the services and kind of program that the student needed. The district agreed that the student was entitled to some form of compensatory services because it had not provided the services specified in the IEP.

The Hearing Officer disposed rather summarily of the challenges that the parents made to specific items, including (1) the qualifications of the proposed communication facilitator (Hearing Officer found that she can be appropriately trained once the teacher is hired), (2) qualifications of the special‑education teacher (Hearing Officer found her to be "appropriately credentialed and skilled"), (3) the proposed peer group in the substantially separate classroom (Hearing Officer found that "parents have not met their burden in showing that the proposed peers are inappropriate"), (4) implementation of the transition plan (Hearing Officer found that any deficiencies were "de minimis"), (5) acoustical modifications in the classroom (Hearing Officer ordered Quincy to bring back the consultant to inspect the modifications and "determine whether they have been made appropriately").

As remedies for the district’s failure to provide FAPE, the parents listed 13 specific items that they wished Quincy to be ordered to do (not all listed in the decision) in addition to compensatory services. However, after rejecting or partially allowing some of the parents’ proposed remedies, as detailed above, the Hearing Officer determined that Quincy "had been making reasonable efforts to locate a teacher of the deaf." The issue then came down to the appropriate compensatory services to be awarded. However, after two days of hearing and written closing arguments (the parties also had three settlement conferences with the Deputy Director of the BSEA), the Hearing Officer said that she was "not able to quantify what Student has lost from not receiving all of the services in her IEP" and because there was no testimony "regarding what compensatory services would be appropriate at this time," she ordered Quincy "to confer with both the current district‑wide teacher of the deaf and parents’ consultant . . . to determine what compensatory services will compensate Student appropriately." The Hearing Officer also declined the parents’ request to keep the case open to monitor Quincy’s attempts to hire a teacher that both parties agreed was necessary.

Comment: Although acknowledging that "the IDEA does not excuse a district from providing FAPE in any circumstance," the Hearing Officer did not order any remedy, despite the apparently prodigious and time‑consuming efforts of the parents and their counsel.

Boston Public Schools, BSEA #06‑6508, 13 MSER 68 (2007)

In this ruling on a motion to dismiss a damage claim in a Section 504 case, Hearing Officer Crane reviewed the limits on the BSEA’s authority to award damages. He affirmed the BSEA’s position that it cannot award monetary damages under Section 504 of the Rehabilitation Act, rejecting the student’s contention that the BSEA’s authority had been extended to allow it to award monetary damages. The Hearing Officer pointed out, however, that the First Circuit has determined that the BSEA should conduct fact‑finding relevant to monetary‑damage claims without actually determining monetary damages (parents would then request the monetary damages in court). Furthermore, the Hearing Officer noted that the BSEA’s authority to award equitable remedies often involves payment of money as reimbursement to the parents, as well as non‑monetary compensation in the form of services and accommodations to compensate the student for services that had not been but should have been provided. Since those types of awards are available for Section 504 claims as well as for special‑education claims, the Hearing Officer allowed Boston’s Motion to Dismiss only as to the student’s request that the BSEA award monetary damages other than as reimbursement.

Everett Public Schools, BSEA # 06‑2597, 13 MSER31 (2007)

In a July 2006 decision (12 MSER 180), Hearing Officer Beron had previously held that Everett was wrong in finding that the student was no longer eligible for special‑education services, and she had ordered Everett to provide 98 hours and 20 minutes of compensatory services, consisting of pull‑out multi‑sensory writing instruction and organizational support, to compensate for that error. Six months later, the student’s mother complained that Everett had not complied with the order and that the BSEA should now order Everett to place the student at Landmark as compensatory education for Everett’ s lack of compliance with the July order. (The Hearing Officer had denied the request for a Landmark placement in the original hearing for compensatory services.) In this December hearing to determine whether Everett was in compliance with the July order, Hearing Officer Beron found that Everett had implemented all the multi‑sensory writing instruction, but only some of the organizational services. Everett claimed that the student’s mother prevented the district from implementing the services. The Hearing Officer ordered Everett to report back in 90 days with the name of the teacher and a written system for organization, but stated that Everett would be excused from the order if the student’s mother prevented implementation. The Hearing Officer again denied the mother’s request for a Landmark placement.

Discipline Cases

In this quarter there were two cases involving the disciplining of special‑education students. In both cases the determination of whether the student’s conduct was a "manifestation" of the student’s disability was a factor critical to the outcome. In both cases the districts made procedural or legal errors, but the districts’ actions were basically upheld because in neither case was the student’s conduct found to be a manifestation of his or her disabilities. If the conduct is not a manifestation of the disability, districts can discipline disabled students in the same manner as non‑disabled students, and in the circumstances of these cases the districts’ errors of law and procedure were irrelevant. In neither case were the students represented by an attorney.

In the first discipline case, Scituate Public Schools, BSEA #07‑0521, 13 MSER 13 (2007), the student was an 11‑year‑old boy with Asperger’s Syndrome and learning disabilities who had grabbed the top of the school principal’s necktie and pulled hard. The principal reported that he could not breathe but he reacted quickly, pushing the student away. The district determined that when the student pulled on the principal’s necktie, the student was possessing or carrying a dangerous weapon (the necktie). A student’s possession of a weapon in school is one of the "Special Circumstances" set forth in IDEA 2004 that allows a district to unilaterally remove the student to a 45‑day Interim Alternative Educational Setting (IAES) regardless of whether the student’s conduct was a manifestation of his disability. (The other "special circumstances" are knowingly possessing or using illegal drugs or inflicting serious bodily injury upon another person. 20 USC s.1415 (G).)

The Hearing Officer held that the student was not possessing or carrying a weapon ("in the factual context of the present dispute, there was no evidentiary basis to conclude that the necktie was readily capable of causing death or serious bodily injury to Mr. Grassie"). However, this legal error by the district proved to be of little solace to the student, because the district also found that the student’s conduct was not a manifestation of his disability. If a special‑needs student’s conduct is not a manifestation of his disability, the district can discipline the student in the same manner as it would discipline a non‑disabled student, including changing the placement for more than 10 days. The Hearing Officer upheld the district’s manifestation determination, finding that there was not a "direct and substantial relationship" between pulling and hanging onto the principal’s necktie and the student’s disability. Therefore, the district had the authority to change the placement as part the discipline, but the parent had the right to appeal the appropriateness of the district’ s interim placement, as she did.

In considering the appropriateness of the alternative placement, the Hearing Officer turned to 34 CFR § 300.532 (b), which provides that the Hearing Officer can order a change of placement to an appropriate interim alternative educational setting for not more than 45 school days "if the hearing officer determines that maintaining the current placement of the child is substantially likely to result in injury to the child or others." The parent agreed that returning the child to the public school would be dangerous and the Hearing Officer found that risk of injury was substantially likely. The Hearing Officer did not reach the issue of what the appropriate placement would be, because the parent and the district "agreed to work together to place Student in a day psychiatric hospital or a similarly intensive and comprehensive therapeutic setting."

Comment: The 2004 IDEA amendments increased the requirement for proving that a child’s conduct was a manifestation of his disability. The IDEA now requires that the conduct be "caused by" the student’s disability or have "a direct and substantial relationship" to the disability. To prevail in a dispute over whether the student’s conduct was a manifestation of his or her disability, the student will usually need testimony from a psychologist who can relate the conduct to the disability.

As in the Scituate case, above, Blue Hills Regional Technical School, BSEA #07‑4082, 13 MSER 25 (2007), discusses the interplay between the IDEA disciplinary provisions and the Massachusetts statutes on student discipline. This student was arrested during the summer for possession with intent to distribute a Class B controlled substance, a felony. Even though the student’s misconduct did not occur on school property and even though she had not been convicted of a crime, the Massachusetts statute, G.L. c.71, §37½H, allows the principal or headmaster to suspend a student who is charged with a felony "for a period of time determined appropriate by said principal or headmaster if said principal or headmaster determines that the student’s continued presence in school would have a substantial detrimental effect on the general welfare of the school."

The Massachusetts statute allowing a principal to suspend a student charged with a felony applies to all students, but the federal special‑education law (the IDEA) supersedes any state law. As the Hearing Officer pointed out, when a student with an IEP is subject to disciplinary proceedings, the IDEA requires that a student’s Team "be convened to ascertain if the conduct for which the student is being disciplined is a manifestation of the student ’s disabilities. Only after the manifestation determination has been conducted, and only if no manifestation is found, may districts proceed to discipline a special education student as they would a child in regular education." A state statute like the Massachusetts statute can only be applied after the district has complied with the IDEA and the conduct of the student has been found not to be a manifestation of her disability.

The Hearing Officer found that Blue Hills committed a "significant procedural violation" when it disciplined the special‑needs student under the Massachusetts statute without first convening the student’s Team to conduct a manifestation determination. However, as in Scituate, the district’s procedural violation again was of little solace to the parent or student. The Hearing Officer determined that even though the student had been excluded for 22 days before the district convened a Team, and that the student’s conduct was not a manifestation of her disability, because "Student did not challenge either the manifestation determination or the appropriateness of the alternative educational placement. . . .Student left the door open for Blue Hills to cure the procedural violation relating to the sequence of events regarding the manifestation determination and Student’s exclusion, allowing Blue Hills to discipline her as a regular education student under MGL c. 71, § 37½H."

The Hearing Officer provided one small ray of hope for the student. She denied the district’s request for summary judgment because the stipulated facts did not provide evidence as to "whether Student was disciplined in the same manner and for the same duration as a regular education student would have been disciplined for a similar offense." The Hearing Officer did not reach the issue of which party has the burden of proving that the discipline imposed on the special‑education student was or was not consistent with discipline imposed on non‑disabled students committing similar offenses.

Comment: When parents of special‑needs students receive notices of suspension or expulsion hearings from the districts, the letters frequently reference only the Massachusetts statutes. This ruling makes it clear that the Massachusetts statute allowing suspension (and presumably the companion statute allowing for expulsion after conviction of a crime) does not apply to a special‑needs student unless the Team finds that the conduct is not a manifestation of the student’s disabilities. The IDEA also requires, as the Hearing Officer notes, that the district must continue to provide services outlined in the IEP even if the student is "suspended" or excluded from the school.

Joinder of other state agencies

The BSEA has the authority to order state agencies such as the Department of Social Services ("DSS") or the Department of Youth Services ("DYS") to provide services to a student if additional services are necessary to ensure that the student will be able to access or benefit from the school district’ s special‑education program and services.

In Lowell Public Schools, BSEA #07‑2412, 13 MSER 40 (2007), Hearing Officer Crane held that DSS was a necessary party for the hearing because the student had been placed in the custody of DSS and had been receiving services from DSS. However, in Boston Public Schools, BSEA #07‑2349, 13 MSER 49 (2007), the same Hearing Officer denied Boston’s request to bring in DSS and DYS in a case where the student was in the physical custody of DYS, because DSS had no current involvement with the student and DYS had voluntarily agreed to work with Boston to assist with placement of the student. Hearing Officer Crane left open the possibility of bringing in one or both agencies at a later time.

Rulings involving the conduct of the due‑process hearing

Blue Hills Regional Technical School, BSEA #07‑2789, 13 MSER 20 (2007)

In this case about whether the student had a medical condition that required him to be educated at home, the district subpoenaed the child’s pediatrician to testify at the hearing, and the parent filed a motion to quash the subpoena. The Hearing Officer ruled that the pediatrician’s live testimony was necessary because the pediatrician’s written statement did not have the date the student was confined to his home, the expected duration of the confinement, the medical reasons for the confinement, or even what medical needs must be considered in planning home services.

Mattapoisett Public Schools, BSEA #06‑6153, 13 MSER 22 (2007)

Parents challenging a district’s proposed IEP often want information about the other children that the district is proposing to group with their child. In this case, Mattapoisett asked the Hearing Officer to rule that it did not have to turn over IEPs and other documents pertaining to the children with whom the student was or would be grouped, even though the parents specified that the documents were to be redacted of any personally identifiable information. Mattapoisett argued that information about the other students was irrelevant and that the only issue was the student’s individualized program and the proposed services. The Hearing Officer did not find the district’s arguments persuasive. On the contrary, he found that IEPs and other documents pertaining to other students are "material and necessary" for the parents to proceed with their claims, because those documents "provide a potentially invaluable source of information relevant to Parents’ claims that Mattapoisett’s proposed educational placements for Student are or were inadequate as a result of the inappropriate grouping of students with whom Student was or would be placed." Mattapoisett also raised another objection to providing the information about the peer groupings, namely that the documents could "possibly" be identifiable to a particular student and thereby violate the privacy restrictions in the federal and Massachusetts student‑records regulations. In order to minimize this possibility the Hearing Officer ruled that after receiving the redacted documents, the parents’ attorneys could share them only with the experts who were assisting the parents in determining appropriate groupings for the student.

Comment: This ruling is a strongly worded explanation of why information about other students is important in determining whether a district’s proposed IEP is reasonably calculated to provide FAPE. However, if the Hearing Officer is ruling that the attorney cannot share the information with his client, as it appears he is, this seems to be too restrictive, since presumably the client needs to have as much information as his attorney has in order to have input into the legal strategy for presenting the claims. Preventing the client from accessing the documents may even be a due‑process violation.

Student’s mental‑health records

Boston Public Schools, BSEA #06‑6508, 13 MSER 51 (2007)

In this case a student with Crohn’s disease, depression, and anxiety filed a hearing request claiming that Boston had not provided a reasonable accommodation under Section 504 of the Rehabilitation Act. Boston subpoenaed the records of this student’s psychologist, claiming that those records were necessary to determine the nature and extent of the student’s disabilities and whether his requested accommodations were necessary and appropriate to accommodate those disabilities. Although the student’s attorney acknowledged that he would be calling the psychologist as a witness at the hearing, he filed a motion to quash the subpoena for the mental‑health records, claiming that they are privileged pursuant to G.L. c.233, s.20B.

The Hearing Officer reviewed the Massachusetts criminal cases that have established protocols for determining whether a party’s mental‑health records will be ordered produced as an exception to the statutory psychotherapist privilege. Once it is determined that a party has introduced his mental or emotional condition as an element of his claim, the issue is whether it is more important to the interests of justice that the privileged records be disclosed than that the relationship between patient and psychotherapist be protected. The Hearing Officer ruled that he would review the records himself and then determine which, if any, parts of the records should be disclosed to Boston’s attorneys.

Evaluations without parental consent

Agawam Public Schools, BSEA #07‑4676, 13 MSER 1 (2006)

In this case the district requested the BSEA to allow a three‑year re‑evaluation to take place without the parents’ consent. The parents had not responded to the district’s request to conduct a re‑evaluation of the student. The parents also did not respond to the Hearing Officer’s attempts to conduct a pre‑hearing conference, nor did the parents attend the BSEA hearing. Thus, without any input from the parents at all, the Hearing Officer had to decide whether the district could re‑evaluate the student without receiving consent from the parents and also whether Agawam’s proposed program of inclusion with pullouts was reasonably calculated to provide FAPE to a 14‑year‑old student with executive‑functioning deficits, verbal‑comprehension deficits, and some degree of Attention Deficit Disorder.

The Hearing Officer pointed to the "general rule" that the parents may not preclude a district from performing a re‑evaluation if the parents want the child to continue to receive special‑education services. Since the parents had not affirmatively indicated that they wanted to terminate services, the Hearing Officer presumed that the parents wanted services to continue and therefore he approved the district’s request for a re‑evaluation. He also found that there was "ample" evidence that the district needed updated, objective information about the student to determine if services should be adjusted and for planning for the next school year, especially since the student’s transition to high school would involve increased educational demands.

Without any input from the parents or student, the Hearing Officer also found that the student made effective progress and that Agawam’s proposed IEP was reasonably calculated to provide FAPE.

Scituate Public Schools, BSEA #07‑4676, 13 MSER 110 (2007)

As in the Agawam case, above, Scituate had to request a hearing to get authority to conduct a three‑year re‑evaluation. Scituate had sent the parents three written requests and had held a Team meeting to obtain the parents’ consent, all to no avail. At the hour‑and‑a‑half hearing, Scituate’s witnesses testified that the student would be denied FAPE if he was not evaluated, especially since he was transitioning to high school from the middle school. The parents did not testify at the hearing, but did convey their concern that the evaluation would interrupt the student’s schedule and their belief that Scituate had enough information from the evaluations that the parents had submitted. The Hearing Officer was convinced that Scituate would minimize any interruption in the student’s instructional time and pointed out that a school district is entitled to do its own testing even if the parents provide independent evaluations.

Other Rulings

Motion to extend temporary placement

Melrose Public Schools, BSEA #07‑4987, 13 MSER 70 (2007)

In response to what might seem a routine motion by a school district for more time to comply with a BSEA order to create or locate an appropriate special‑education program for a student, Hearing Officer Byrne issued a sharp rebuke to Melrose. At the original BSEA hearing, the parents claimed that their child should be in the regular‑education classroom. The original BSEA decision (BSEA #07‑2782) had allowed Melrose to place the child in a temporary diagnostic placement for 45 school days, but the decision specifically stated that if Melrose could not locate an appropriate program within 45 school days of the temporary placement, "Melrose shall return the Student to the regular education classroom." Five days (including two weekend days) before the expiration of that 45‑day deadline, Melrose served a motion to extend the time at the temporary placement, referring to that placement as a "stay put" placement. The Hearing Officer denied the request for an extension, strongly rejecting the characterization of the temporary placement as a stay‑put placement, pointing out that it was an "extremely limited extension of a diagnostic program which cannot, by regulation, be a Student’s ‘stay put’ placement." Since there were no new evaluations, assessments, or data collections, the Hearing Officer rejected the district’s motion to extend the temporary placement on both procedural and substantive grounds.

Dispute over contract with private provider

Dracut Public Schools and Melmark, Inc., BSEA #07‑2528, 13 MSER 43 (2007)

In this case Dracut had agreed to fund a placement at Melmark for a 10‑year‑old child with autism, a behavior disorder, and a seizure disorder. At the time that Melmark assessed the student, the student did not require 1:1 services, and the tuition rate in the contract between Melmark and Dracut was based on a 1:2 student‑to‑teacher ratio. However, by the time the student was ready to attend Melmark, he required 1:1, but Dracut would not increase the amount it had agreed to pay Melmark. Parents filed the hearing request because Melmark was threatening to discharge the student unless Dracut paid the additional cost for 1:1 services.

K O T I N ,  C R A B T R E E  & S T R O N G ,  L L P

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