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: 4th Quarter, 2005, by Lawrence Kotin

This quarterly Commentary reviews 12 decisions by the Bureau of Special Education Appeals. As usual, these cases span a wide range of issues and do not lend themselves to easy categorization. Two decisions came to opposite conclusions in applying the standard for FAPE (Fall River and Peabody). Another (Sudbury) offers guidance on when compensatory services and reimbursement will be ordered. Two others (Leominster and Upper Cape Cod Regional Technical School) are examples of the futility of pro se parents trying to prove non-compliance in the face of an “army” of school witnesses, and their failure to address the core issue of FAPE for their children. Another (Attleborough) is an example of pro se parents arguing for a residential placement for their child but not offering any evidence to support such a placement. Another (a ruling on a Motion for Joinder in the Fall River case mentioned above) provides useful guidance on the new regulation governing school-system responsibility in cases where divorced parents living in separate communities are requesting a private placement. Another (Holyoke) concerns the issue of responsibility for a homeless student. Another (Harwich) addresses the issue of Hearing Officer jurisdiction over an out-of-state private facility. Two other cases (Hopkinton and Hampden-Wilbraham) affirm the principle that parents cannot control the school system's choice of evaluators. And another (Norfolk County Agricultural High School) addresses the issue of the sufficiency of the pleadings to survive a motion to dismiss and for summary judgment in a Section 504 claim.

When is “some progress” not “effective progress”?

In Fall River Public Schools, BSEA #05-5383, 11 MSER 242 (2005), the answer is: when the progress is insufficient, taking into account the student's profile and, in particular, his potential. The student in this case was a four-year-old boy with diagnoses of autism and developmental delay who had major deficits in communication/language, social skills, behavior, and ability to be independent. His behaviors included, at various times, screaming, crying, banging and slapping his head, biting his hand, and throwing objects. His current functioning included inconsistently making eye contact, imitating others, greeting others verbally and non-verbally, initiating reciprocal play gestures with adults, using vocabulary and occasional spontaneous language, and following school routine and one-step directions.

The program he attended was a full-day, substantially separate, “language-based” public-school program with three other children with diagnoses of autism, staffed by a teacher and two assistants. Services included discrete trial training (two hours a week), speech and language therapy (two times a week for 30 minutes each, one of which included discrete trial training), and occupational therapy (one time a week for 30 minutes). In addition, the student received five-and-a-half hours a week of home-based services. The student was also receiving privately provided home-based instruction and speech and language therapy, which were paid for by health insurance and not included in his IEP.

The parents were seeking placement in a specialized private day program operated by the May Center for Early Childhood Education. The parties stipulated at the conclusion of the hearing that the program at the May Center was appropriate for the student and that the sole issue to be decided was whether the public-school program attended by the student provided FAPE.

The Hearing Officer began his analysis by defining the legal standard for FAPE. Of key importance to the outcome in this case was his finding that “in determining whether a particular student's likely progress is sufficient for the IEP to be appropriate, one must consider the potential of the particular student to make educational progress. In order to comply with the FAPE standard, the student's likely progress under the proposed IEP must be commensurate with his or her potential.” In applying this standard, the Hearing Officer credited the testimony of the parents' experts “as to the critical importance of providing effective services to a child with student's profile during his early years (age 2 through 7 years) during which there is a ‘window of opportunity' that will quickly close after the student reaches age 7.”

Weighing the testimony of the experts on both sides, the Hearing Officer concluded that the student was receiving substantial services and making progress in the public-school program. Nevertheless, the Hearing Officer found the parents' experts persuasive when they testified that the services were not intensive enough and the progress not sufficient to take “advantage of Student's time-limited opportunity and potential to learn.” The opinions of the parents' experts were based on their extensive experience and training, their knowledge of the student, and their detailed observations of the programs at issue. These opinions were bolstered by evidence provided by the parents and by one of the parents' experts, who saw the student in her office on a regular basis over an extended period of time and found that the “student has been unable to generalize his behavioral gains from the classroom to the home and community—in fact, there has been regression in this area.”

The Hearing Officer concluded that “[in] light of the above findings with respect to the appropriateness of the IEP goals and expectations for Student, the intensity of the services being provided, the progress being made in the classroom, generalization of what has been learned in the classroom to the home and community, and behavioral regression in the home and community, I am persuaded that the IEP most recently proposed by Fall River has not and would not likely result in meaningful or effective progress commensurate with the student's potential to learn. I believe that there is an unacceptably high likelihood that if Student were to continue in Fall River's proposed program and services pursuant to its IEP, this would jeopardize Student's remaining, time-limited ‘window of opportunity' to become a functional and independent person.”

In ruling that the IEP and program were not susceptible to modification that would make them appropriate, the Hearing Officer found that “the deficiencies of the IEP go to the content of the IEP as well as to the manner in which the services under the IEP are provided. Adequate correction of these deficiencies would require that changes be made throughout the program and that these changes be implemented by staff and be overseen by an expert who understands and accepts their validity. This would likely be impossible to accomplish in the short term and would be uncertain in the long run.”

This is a very carefully reasoned decision based upon a thorough presentation of the facts and expert opinions by both sides. As the Hearing Officer stated: “This is a close case.” The outcome, however, was based exclusively on the unique needs of the student in question, which ultimately produced the right result after a careful consideration of all of the evidence.

In Peabody Public Schools, BSEA #05-4488, 11 MSER 207 (2005)[1], the Hearing Officer applied the same standard for FAPE as in Fall River Public Schools, supra, but found the public-school program appropriate for a nine-year-old third-grade student of above-average cognitive ability with a mild to moderate language-based learning disability and attention issues affecting reading, written expression, math reasoning, and executive functions. While the Hearing Officer agreed with the parents' principal expert regarding deficiencies in the peer grouping for third grade, the student's regression in certain areas during third grade, and a lack of coordination among third-grade staff, she found that some of these problems had been corrected in the proposed fourth-grade IEP and program. Also, the Hearing Officer found persuasive the large quantity of testimony by school witnesses that the student had made effective progress. Inexplicably, the Hearing Officer gave no weight to the testimony of the student's therapist, who had been seeing him for two-and-a-half years, because she had rewritten her contemporaneous notes to make them more coherent for use at the hearing.

Of key importance to the outcome was the standard for FAPE articulated by the Hearing Officer: “In other words, as long as the student is making reasonable, meaningful, demonstrable progress in areas identified as special needs, the program and services may pass muster.” While the Hearing Officer alluded to the importance of the student's potential in determining whether he had made effective progress, she reached a different conclusion from the Hearing Officer in Fall River, supra, finding that the student in this case had made effective progress in the program at issue.

When are parents entitled to compensatory education and reimbursement?

The decision in Sudbury Public Schools, BSEA #05-4726 and #05-4827, 11 MSER 260 (2005), will stand as the definitive word on this subject. At 98 pages in length, it is reminiscent of Wilt Chamberlain's NBA record of 100 points in a single game. This is not to fault the Hearing Officer, who painstakingly responded to the myriad claims that this case generated over a three-year-plus period (under the three-year statute of limitations that preceded the recent IDEA amendments, which reduced the limitations period to two years). Interestingly, the parties settled their dispute over the student's present and prospective placements for the summer of 2005 and the 2005-2006 school year, with the student placed at the Curtis Blake School, a private special-education day school in western Massachusetts. Thus, this case is exclusively about retroactive relief. While agreement about the present and future generally provides a strong basis for settling the past claims as well, such settlement did not occur in this case for reasons that are not revealed in the decision.

The Hearing Officer disposed of three past years on the grounds that the IEPs for those years had been accepted by the parents (with the exception of part of the 2003-2004 IEP, which was rejected in part). The parents argued that their acceptance of those IEPs should not be a bar to their claims because the school system failed fully to inform them of certain key information about the student's performance and failed to convene a required Team meeting. The Hearing Officer found these arguments to lack sufficient basis in fact to overcome the parents' acceptance of the IEPs and their knowledge of their son's needs through their own observations and information provided by their experts.

The Hearing Officer found further that while Sudbury failed to complete an occupational-therapy evaluation on a timely basis, the parents failed to prove the requisite injury to warrant an award of compensatory services. On the other hand, the Hearing Officer ordered reimbursement to the parents for a certain number of hours of speech therapy because of Sudbury's inability to hire a speech therapist and the parents' consequent need to provide these services privately.

The parents proved a number of procedural violations, including misstatements and omissions in the IEPs (such as inaccurate portrayal of current performance levels), but no relief was granted because the parents failed to prove that any injury was caused by those violations. This is a good illustration of the concept that procedural violations do not warrant an order for compensatory services or reimbursement when they are “harmless,” i.e., when the parents cannot prove that they had any negative impact on the student.

On the other hand, the Hearing Officer found that the proposed Sudbury program for the 2004-2005 school year was inappropriate and that Sudbury unlawfully limited its offer of summer services for the summer of 2004 based on cost factors. While the parents withdrew their son from the public schools during those periods, they were unable to locate a full-time alternative program and, instead, utilized a combination of a tutorial program, private speech therapy, and a private after-school program. The Hearing Officer ordered reimbursement to the parents for all of these services, determining that the student benefited from them and the parents had been unable to locate a single, cohesive program to replace Sudbury's inappropriate program. Because the parents “did the best that they could” in putting together a program for their son, and since no other choices were available, the Hearing Officer found that the equities favored reimbursement to the parents. In ordering reimbursement, the Hearing Officer rejected arguments based on the “least restrictive environment” requirement and on the “notice requirements” applicable to unilateral placements by parents. Given the parents' limited choices, Sudbury's procedural violations, the lack of harm to Sudbury from any failure of the parents to provide notice (if such notice was required at all, which was doubtful since no placement was being put forth), and the overall equities of the situation, the Hearing Officer found that reimbursement to the parents was warranted.

The Hearing Officer then denied the remainder of the parents' claims, which included requests for reimbursement of their babysitting, interest, private evaluations, and transportation, based on factual findings in each instance. In response to the parents' claim for damages, the Hearing Officer noted his lack of jurisdiction to order damages and the failure of either party to request findings specifically with respect to that issue. He did indicate, however, that “the Facts and Discussion sections of this Decision [would suffice] to serve this purpose.”

Like the decision in Fall River, this is another example of where the Hearing Officer carefully crafted a decision that ultimately was fair, practical, and responsive to the parties' claims. Also, it provides excellent guidance concerning the proof required to warrant an award of compensatory services and reimbursement.

Can a school system be in compliance but the student denied FAPE?

In Leominster Pubic Schools, BSEA #05-4944, 11 MSER 194 (2005), the school system presented extensive evidence to show that it complied with the Section 504 plan of a 15-year-old ninth-grade student who was frequently absent from school because of acute sinusitis and mold allergies. The pro se parent made various allegations of non-compliance, requesting that her son's grade in algebra and/or history be adjusted upward, but presented minimal evidence to support the allegations. For example, the student did not testify despite having first-hand knowledge of the truth or falsity of the parents' allegations. The net result was that the school was “exonerated” but the student was unsuccessful in the program. The focus of the decision was whether the school system was carrying out the requirements of the 504 plan, rather than whether the student was benefiting from the program as a whole. Once the Hearing Officer was satisfied with the former, the latter didn't seem to matter.

Similarly, in Upper Cape Cod Regional Technical School and Sandwich Public Schools, BSEA #06-0501 and #06-0808, 11 MSER 200 (2005), the issue before the Hearing Officer was whether a vocational program for the school year that had just ended (2004-2005) had been appropriate for a 16-year-old student with mental retardation and pervasive weaknesses in cognitive, academic, and social functioning. As in the previous case, the pro se parent did not present any witnesses, and the focus of the hearing was on whether the vocational school had carried out the accommodations in the IEP. With a dearth of historical information about the student, and no evidence that the IEP was inappropriate, the Hearing Officer had little choice but to find from the testimony of the vocational-school service providers that the IEP, developed by his district of residence (Sandwich) and approved by his parent, was fully and appropriately implemented.

In both of these cases, the school system was found in compliance with the students' accepted plans, but in neither did the student benefit fully from the program. One must ask if the issues could have been framed so as to result in findings more beneficial to the students involved. Obviously, with the limited evidence offered by the pro se parents in each case, this would have been difficult to accomplish. One possible approach might have been a prehearing conference in which the Hearing Officer could instruct parents about the evidentiary requirements for producing such a result.

When is a residential placement warranted?

In Attleborough Public Schools, BSEA #06-0034, 11 MSER 177 (2005), the Hearing Officer found that a residential placement was not warranted for a high-school student where there was no evidence of an alleged bipolar illness, nor was there a recommendation for residential placement by any expert. Furthermore, the student testified very cogently and maturely that he did not want to attend a residential program. This testimony was given considerable weight by the Hearing Officer, who found the public-school program to be appropriate with certain modifications. This was a clear case of pro se parents failing to offer appropriate evidence to prove their case. Also, it illustrates that the testimony of an older student can be significant in influencing the outcome in certain circumstances.

When is there joint responsibility for payment for a private placement where divorced parents live in different towns?

The Ruling on Joinder in Fall River, supra, 11 MSER 193 (2005), provides helpful guidance on the newly adopted regulation governing financial responsibility where divorced parents live in different communities (603 CMR 28.110 (2)(a)(2)). In this case, the student lived with the mother during all school days and nights and with the father on weekends. Citing the decision in Walker Home for Children v . Franklin, 416 Mass. 291, 621 N.E.2 d 376 (1993), the Hearing Officer found that the mother's community was solely responsible because under Walker, “a person's domicile is the place where a person dwells and which is the center of his domestic, social and civil life.” While a literal reading of the regulation might suggest differently, the mere fact that a student lives in two communities does not make both of those communities responsible where, as in this case, one is clearly “the center of his domestic, social, and civil life.” Therefore, Fall River's motion to join Somerset, where the student's father lived, was denied.

What is the residence of a student who qualifies as homeless?

Holyoke Public Schools, BSEA #05-5493, 11 MSER 218 (2005), is a case interpreting the McKinney-Vento Act, which governs educational responsibility for homeless children. The student in this case, a 14-year-old Hispanic girl in DSS custody, had been in 27 “homes” due to her behaviors. Using common sense and interpreting the McKinney-Vento Act, which tries to ensure stability and continuity of responsibility, the Hearing Officer issued an order that would be the least disruptive to the student's education.

What are the limits of the Hearing Officer's jurisdiction over an out-of-state private school?

In Harwich Public Schools and Spaulding Youth Center, BSEA #06-2300, 11 MSER 230 (2005), the Hearing Officer found, in ruling on a motion for stay-put in a private-school program that was trying to discharge a student, that she had jurisdiction over the New Hampshire program where a Massachusetts student was placed, but lacked jurisdiction over the issue of whether the private school was complying with IDEA by abiding by New Hampshire's maximum age for special-education eligibility of 21.

Can parents control the choice of evaluators as a condition of their consent?

In Hopkinton Public Schools, BSEA #05-6127, 11 MSER 190 (2005), the answer is “no.” In this case, the parent consented to an evaluation but requested a neuropsychologist rather than a psychologist. The Hearing Officer found that the parents could not condition their consent in this way but could request an independent evaluation by a neuropsychologist. Similarly, in Hampden-Wilbraham Regional School District, BSEA #05-4878, 11 MSER 238 (2005), the Hearing Officer found that the parents could not condition their consent on their approval of the choice of evaluators. In both cases, however, if the parents were dissatisfied with the results of the school's evaluation, they could request an independent evaluation by evaluators of their choice.

Parents have the tight to try to prove their discrimination claim

In Norfolk County Agricultural High School, BSEA #06-0390, 11 MSER 233 (2005), the Hearing Officer appropriately allowed a discrimination claim to go forward under Sections 504 of the Rehabilitation Act, where discrimination on the basis of disability was alleged.

CONCLUSION

This review illustrates the wide range of issues heard by the BSEA and the care given to each one. While, occasionally, the student appears to “get lost in the shuffle” of evidentiary considerations, overall, the decisions seem well reasoned and fair. In general, the decisions reviewed for this quarter provide useful guidance in a number of areas, including defining the FAPE standard, the standard for compensatory services and reimbursement, responsibility of towns in divorce situations, and evidentiary requirements for prevailing in a variety of situations.

[1] The parents in this case were represented by Kotin, Crabtree & Strong.

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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