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| 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, 2007, by Lawrence Kotin This quarterly Commentary reviews 10 decisions by the Bureau of Special Education Appeals. As usual, these decisions span a wide range of issues. Of particular note is that only one is an "up or down decision" about the appropriateness of a public school program as opposed to the parents’ choice of a private placement (at the Landmark School). Six others feature significant issues of law, and three concern pro se parents frustrated with the limits of the school systems in addressing the needs of their children. Of the six, one addresses the legal issue of a school district’s authority to develop a behavioral plan without the involvement of the parents in a situation in which the district considered the student to be a danger to himself and others, and the mixed legal and factual issue of the permissible level of restrictiveness of such a plan. Another concerns the financial responsibility for a placement in a private day school where the parents are divorced and live in different districts. A third decision considers the jurisdiction of the BSEA over a complaint by parents that a home program is not being implemented properly. Another addresses the issue of whether a new district of residence can join the former district of residence in a case where the parents are seeking compensatory services from the former district and funding for a private day placement on the grounds that the program offered by the new district would not provide FAPE. Another provides an interesting perspective on a situation where DSS is cost sharing a residential placement. The last of the six involves a futile attempt by parents to secure funding for their choice of a reading program. The three pro se cases involve parents trying to push the limits of the appeal process and having limits set by the hearing officers. All together, the 10 decisions provide a good representative sample of the much larger BSEA caseload. Parents cannot meet their burden of proof for an outside placement. Medfield Public Schools, BSEA #07 7260, 13 MSER 365 (2007), involved a student in the 12th grade at Landmark who was unilaterally placed as a boarding student in the 10th grade after having completed ninth grade in Medfield High School. The parents were seeking reimbursement for the boarding placement for the 10th and 11th grades. Medfield argued that the student made effective progress in the grade immediately prior to placement, i.e., ninth grade, and that the succeeding year, i.e., 10th grade, would have been a continuation of a comparable program. After a careful analysis of the evidence and the arguments on both sides, the Hearing Officer concluded that the student did indeed make effective progress in ninth grade and that 10th and 11th grades would have been comparable programmatically to ninth grade. The parents presented the testimony of two primary experts—a neuropsychologist and an educational consultant. Both testified that the student required a language based program in order to make effective progress. They were not able to persuade the Hearing Officer, however, that the program the student attended in ninth grade was inappropriate. Compounding the issue of proof in this case was the fact that the experts contradicted each other on critical matters such as the required class size and the need for a residential component. Also, the evidence of effective progress in the ninth grade was documented in considerable detail by Medfield’s witnesses. For example, the testimony of the student’s ninth grade English teacher was given great weight because she was able to provide specific examples about the improvement in the student’s level of proficiency from the beginning of the school year to the end. The Hearing Officer did an excellent and respectful job addressing each of the parents’ arguments with a detailed response. District held to the Team process and LRE in proposing its behavioral plan. In Belmont Public Schools, BSEA #08 3070, 13 MSER 388 (2007)1, the same Hearing Officer as in the Medfield case, supra, was presented with a "creative" effort by Belmont to remove a change of placement decision from Team consideration by characterizing it as a behavioral plan. The student in this case had engaged in some behaviors that Belmont considered to be dangerous to the student and others but that did not fall into any of the statutory categories that would have allowed Belmont to remove him unilaterally to an Interim Alternative Educational Setting pursuant to 20 USC §1415. Belmont had also run out of available suspension days. Belmont tried to bypass the Team process by attempting to impose a behavioral plan that was drafted without parent input and that was very onerous and restrictive in its effect. The plan would have removed the student from his inclusion program and placed him in an entirely segregated setting, and imposed conditions under which he would work his way back into the inclusion program he had been attending. The plan spanned a period of six weeks. In the first week, the student would have been excluded from school entirely. In the second, he would have attended for an hour per day in a separate room to work on "replacement behaviors" and in each subsequent week he would have added bits of time in the separate room and then small amounts of time in the inclusion setting. Any week’s format would be repeated if the student was unsuccessful in meeting that week’s goals. The Hearing Officer decided that any plan that affects a student’s placement, as this one did, must be the subject of a Team meeting and cannot be imposed by the school district. Having established that Belmont did not follow the appropriate procedure, the Hearing Officer concluded by finding the proposed behavioral placement to be overly restrictive, crediting the parents’ testimony that isolating the student would create more problems than it would solve. Consequently, he ordered Belmont to convene the Team and develop a less restrictive option. This is an important case which affirms the centrality of the Team process in addressing the complex needs of students. Equal physical custody results in shared financial responsibility regardless of a divorce agreement’s award of sole physical custody to one parent Hamilton Wenham Regional School District, Ipswich Public Schools, and the Massachusetts Department of Education, BSEA #07 7201, 13 MSER 358 (2007), involved a situation where the parents of a student requiring a private day placement were divorced and living in different communities. The Massachusetts Department of Education first assigned financial responsibility to Ipswich because the divorce agreement stated that the mother, who lived in Ipswich, had sole physical custody of the student and the father had reasonable visitation rights. Subsequently, at the request of Ipswich, the Department reversed its assignment and found that the two districts should share the tuition cost because the student lived with each parent two of the four week nights, or half of the time (Friday was considered a weekend night). In sum, the Hearing Officer affirmed that financial responsibility for a private day or residential placement depends upon where the student actually resides from Monday through Thursday. Home placement held to be a special education service despite DOE guideline Randolph Public Schools, BSEA #08 0305, 13 MSER 355 (2007), raised the issue of the jurisdiction of the BSEA over matters involving home placements. In this case, the parents filed a complaint alleging that Randolph had failed to comply with its obligation to provide home tutoring. Relying on a state Department of Education guideline concerning home and hospital placements, Randolph argued that the home placement was a regular education placement because the guideline said that initially no IEP is required in the case of a home placement. Therefore, argued Randolph, the BSEA lacked jurisdiction to hear the dispute. The Hearing Officer declined to rely on the guideline, finding it ambiguous in that while an IEP was not required initially, it would be required were the student to remain at home more than 60 days. Therefore, the Hearing Officer concluded that the guideline could be interpreted to mean that home tutoring is a special education service simply because a student is eligible for an IEP at some point, i.e., after being at home for more than 60 days. Thus, Randolph’s motion to dismiss was denied. New district cannot join the former district in responding to unilateral placement Masconomet Regional School District and Middleton Public Schools, BSEA #07 7324, 13 MSER 363 (2007), addresses the issue of the continuing responsibility of a previous school district where a student has aged out and entered a successor district. In this case, Middleton is one of the member towns of the Masconomet Regional School District. The student in this case had completed sixth grade, the highest grade in Middleton, and was to become the responsibility of the Masconomet Regional School District for seventh grade. The parents, however, after appropriate notice to Masconomet and Middleton, made a unilateral placement in a private day school, requesting compensatory relief from Middleton and prospective funding from Masconomet. The Hearing Officer added Middleton to the case as a necessary party, but the parents later withdrew their claim against Middleton. Masconomet was then granted leave to add Middleton as a necessary party, without any decision by the Hearing Officer about the potential liability of Middleton to Masconomet. Subsequently, Middleton filed a motion to dismiss itself from the case. In opposing the motion to dismiss, Masconomet argued that if a Hearing Officer were to rule in the parents’ favor and award funding for the private day school, Middleton should be responsible for funding the placement because it was Middleton’s "fault" if the student had failed to make effective progress. In granting the motion to dismiss, the Hearing Officer ruled that once the student aged out of Middleton, the responsible district was Masconomet based on the student’s residence and enrollment within the Masconomet district. Also, the Hearing Officer found that Masconomet was effectively making a claim of educational negligence or malpractice against Middleton and that such a claim was unavailable under common law. Therefore, Middleton’s motion to dismiss was granted. This decision casts some light on the issue of the potential financial responsibility of a former school district for unilateral placements in cases where a student is changing districts for any reason. Essentially, the Hearing Officer found that when a student moves into a district, the district must take the student as he is and cannot shift responsibility to the prior district. DSS custody requirement found not relevant to the issue of responsibility for residential placement based on educational need Brockton Public Schools, BSEA #07 6968, 13 MSER 349 (2007), highlights the issue of parents’ potential loss of custody in DSS cost sharing cases. In this case, DSS was cost sharing a private residential placement with Brockton. The parents retained educational decision making but were fearful that DSS, after 12 months, might be required to secure legal custody from the parents in order to continue cost sharing. To protect against that eventuality, the parents filed for a hearing against Brockton, requesting that Brockton be responsible in the event that DSS discontinued the funding or asked for legal custody. Brockton filed a motion to dismiss, arguing that the parents’ concerns were hypothetical and therefore not ripe for decision. Brockton also argued that since the parents were not alleging that the residential component was needed for educational reasons, their case must fail as a matter of law. The Hearing Officer agreed with Brockton that the parents were not arguing that the residential placement was necessary for educational reasons. Rather, they were trying to attribute financial responsibility for the residential component to Brockton as an alternative funding source in case DSS were to decide to condition its continuing cost sharing on having the parents relinquish custody. While the parents may have been premature in filing their hearing request, one has to be sympathetic to their concern and that of other parents that loss of custody may be a condition of DSS cost sharing agreements. Parents not permitted to choose their child’s reading methodology Bridgewater Raynham Regional School District, BSEA #07 3517, 13 MSER 339 (2007), involved a dispute over methodology, with the parents requesting Lindamood Bell and the district offering the Wilson program. The Hearing Officer found the Wilson program to be sufficient and the Lindamood Bell unnecessary. Also at issue was reimbursement for transportation for two round trips for the provision of after school compensatory speech and language services. The Hearing Officer ordered such reimbursement as necessary because of the mother’s need to return home to take care of her other children. Res judicata brings closure to past but not future claims Sutton Public Schools, BSEA #07 7534, 13 MSER 352 (2007), involves a situation where the parents, previously involved in an eight day hearing, were seeking to rehash issues already decided against them, as well as to raise new issues concerning a subsequent school year. Not surprisingly, the Hearing Officer granted Sutton’s motion to dismiss with respect to the past claims on the basis of res judicata, i.e., the claims have been or could have been litigated during the eight day hearing. Also, correctly, the Hearing Officer denied the motion to dismiss with regard to the future claims. District affirmed in its behavioral approach despite extreme measures Triton Regional School District, BSEA #07 6361, 13 MSER 380 (2007), involved a case of a seven year old student with a peanut allergy, among other conditions, who was physically out of control and needed to be restrained and isolated on numerous occasions. The parents’ request for hearing alleged improper use of physical force and isolation techniques by the school. The Hearing Officer, however, found that school personnel had acted appropriately. While one has to be sympathetic to the school staff who were being assaulted by the student, this case raises the issue of when a district should acknowledge that a matter is beyond its expertise and offer an outside placement early in the process, rather than after a lot of damage has been done. Parents’ noncompliance with hearing decision trumps their claim of district noncompliance Duxbury Public Schools, BSEA #07 2419C, 13 MSER 337 (2007), involved a complaint that the district was not complying with the terms of a BSEA decision requiring a psychiatric evaluation of the student despite the parents’ lack of consent. The Hearing Officer found the district to be in compliance and the parents to be in noncompliance by requiring many preconditions for the evaluation to take place. Conclusion This review illustrates the wide range of issues heard by the BSEA and the care given to each one. These cases provide helpful insight into the relationship between parents and school districts and the BSEA’s role in defining the nature and limits of that relationship. _____________ 1. The parents in this case were represented by Kotin, Crabtree & Strong, LLP.
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This page updated: March 7, 2007. Copyright © 1999-2007 by Kotin, Crabtree & Strong, LLP. All rights reserved.