INTRODUCTION

During the second quarter of 2017, the BSEA issued nine decisions and four rulings that cover a wide variety of issues, reiterating well-established law in some instances and providing new information to parents and practitioners in other instances. Five of the nine decisions involved questions regarding the appropriateness of a student’s placement, with four of those cases involving the Boston Public Schools. The other decisions and rulings considered circumstances in which procedural errors may cause a denial of FAPE (Taunton, Lexington), discovery disputes (Newton, Andover, Scituate), joinder of state agencies (Acton-Boxborough), residency (East Longmeadow), and a question of ripeness (Reading).

Parents secured favorable outcomes in five instances (East Longmeadow, Andover, Taunton, Boston (Berman), and Boston (Figueroa)). The districts prevailed six times (Newton, Boston (Putney-Yaceshyn), Boston (Byrne), Norton, Reading, and Lexington). In the two remaining situations, an agency was joined (Acton-Boxborough) and relief was mixed (Scituate). Rulings do not usually state whether the parents were represented by attorneys, but of the nine hearing decisions, parents had attorneys in two cases (Boston (Figueroa), Boston (Berman)) and prevailed both times. Parents lost both cases in which they were represented by an advocate (Norton and Boston (Byrne)). In the five cases where parents had no representation (Boston (Putney-Yaceshyn), Newton, Taunton, East Longmeadow, and Lexington), parents lost three times and prevailed in two.

DECISIONS

Violation of Student Records Law Does Not Amount to a Denial of FAPE

In Newton Public Schools, BSEA #1602067, 25 MSER 26 (Berman, May 11, 2016),[1] Parents filed a hearing request alleging a denial of FAPE but later withdrew it, leaving a student records issue as the only issue before the hearing officer. The parents alleged that Newton’s failure to provide them with emails concerning the student until just before the hearing was a violation of the student records law, which allegedly had the effect of impeding their ability to participate in developing the student’s educational program. While Newton admitted that it had failed to produce emails until just prior to the hearing, it claimed that any violation was “merely technical and de minimis” and had not deprived the parents of the ability to participate in the Team process.

The hearing officer considered whether or not Newton had violated the student records law and, if so, whether this violation had in turn prevented the parents from engaging in the Team process. The hearing officer cited the student records provision of the Family Educational Rights and Privacy Act (“FERPA”), 20 U.S.C. § 1232g, which defines “education records” as “records, files, documents and other materials which contain information directly related to a student; and are maintained by an education agency or institution¼.” Federal regulations also require school districts to “permit parents to inspect and review any education records relating to their children that are collected, maintained or used by the agency¼without unnecessary delay.” 34 CFR 300.613. The hearing officer stated that the federal student records provisions “could plausibly be viewed to include electronic records¼at least under some circumstances.” Oddly, the hearing officer did not cite the Massachusetts state student records provision, instead relying entirely on the federal law, and did not explain why emails concerning a student would not always be considered part of the “educational record.” Eventually, however, the hearing officer did clearly state that “the pertinent statutes and regulations are broadly written and do not exclude [email] correspondence from their purview.”

The hearing officer stated that Newton’s failure to inform the parents of the existence of the emails until just prior to the hearing “was a technical violation of the provisions at issue” but that no FAPE violation had occurred because the parents had been substantially involved in the student’s programming throughout the relevant time period, given the many Team meetings, formal meetings, and other regular communication with Newton staff members.

When families request a copy of a child’s “student record,” we believe that emails concerning the student (including those between district personnel and without the parent(s)) are always part of the “student record” and that parents are always entitled to copies. Although the hearing officer mentioned that the parents had not specifically asked that Newton include emails in the document production, parents should not have to ask specifically for emails any more than they should have to ask specifically for IEPs, report cards, or attendance records. The hearing officer pointed out that when and if a district’s failure to produce those emails becomes a FAPE violation is a separate question.

School District Loses Bid to Terminate Student Based on Residency

In a situation where a child’s parents live in two separate school districts, the determination of which district the child can enroll in for public school hinges on where “the center of [his] domestic and social life” can be found. East Longmeadow Public Schools and Talib, BSEA #1707631, 23 MSER 36 (Byrne, April 18, 2017), concerned a young boy with Autism whose special education programming had been terminated after East Longmeadow received an anonymous letter asserting that the boy resided with his mother in Springfield and not with his father in East Longmeadow.

The district hired a private investigator, who reported that the boy stayed over for two nights with his mother in Springfield. However, the investigator did not conduct surveillance for a full week, did not speak with any neighbors, and did not speak with any family members. Nevertheless, East Longmeadow terminated the boy’s enrollment in the East Longmeadow Public Schools. The boy’s father filed a hearing request with the BSEA and the district immediately allowed the boy to return to school, pending the outcome of the hearing. He missed one week of school.

Other than some conflicting testimony by two East Longmeadow neighbors, the evidence at hearing suggested that this family did what so many other families do; that is, sharing childcare between parents and grandparents in an arrangement that was structured (the boy lived with his mother on Fridays and Saturdays and with his father and paternal grandparents in East Longmeadow for the rest of the week) but also flexible (the boy had been staying with his mother more often since his grandmother was receiving medical treatment for a serious illness). East Longmeadow tried to argue that pursuant to MGL c. 209C, Section 10(b), custody was presumptively in the hands of his mother and that residency followed custody, but the hearing officer did not agree, stating “The facts relevant to residency do not always align with the facts relevant to custody.” Instead, the hearing officer looked to the DESE’s own regulation (603 CMR 28.10(1)) that assigns programmatic and financial responsibility for eligible students to a school district based on residency and enrollment. The boy had been enrolled in East Longmeadow, his father lived there, both of his parents said he lived there, and East Longmeadow had not offered credible facts indicating actual residence elsewhere. Thus, the hearing officer found that the boy had the right to continue attending East Longmeadow Schools. The hearing officer invited East Longmeadow to come forward if the district had other facts to support its position that Springfield was the appropriate district for the boy’s enrollment in public school, but the hearing officer warned East Longmeadow not to terminate the boy’s special education programming without offering the parents the chance to review and/or explain new information, and reminded East Longmeadow of the need for a referral to the successor school district to minimize any disruption to the child’s special education program.

Failure to Hold Manifestation Determination for One Year Denied Student FAPE

The rules and regulations surrounding the discipline of special education students can sometimes seem unwieldy, but the series of events in Taunton Public Schools, BSEA # 1708888, 23 MSER 67 (Reichbach, May 18, 2017), is striking nonetheless. It serves as a cautionary tale to those districts that are failing to follow the regulations regarding discipline for students with disabilities.

Pursuant to the IDEA and associated regulations, a district may not change the placement of a student with a disability for disciplinary purposes (e.g., suspension) if the conduct triggering the discipline was a manifestation of his or her disabilities. Pursuant to 34 CFR 300.536(a), removal of a child with a disability from the child’s current educational placement is a change of placement if: (1) The removal is for more than 10 consecutive school days; or (2) The child has been subjected to a series of removals that constitute a pattern (i) Because the series of removals total more than 10 school days in a school year; (ii) Because the child’s behavior is substantially similar to the child’s behavior in previous incidents that resulted in the series of removals; and (iii) Because of such additional factors as the length of each removal, the total amount of time the child has been removed, and the proximity of the removals to one another.

Within ten days of a decision to change the placement of a student with a disability for disciplinary reasons, the district, parent, and members of the IEP Team must convene a manifestation determination review. The manifestation determination review is to determine whether the conduct in question was caused by or has a direct and substantial relationship to the child’s disability or was the direct result of the district’s failure to implement the IEP. If either factor applies, the conduct is determined to be a manifestation of the child’s disability, and the child’s placement cannot be changed. Instead, the team is required to conduct a functional behavior assessment (“FBA”) and implement a behavioral intervention plan for the child. During this process, the child must be permitted to return to the placement from which the child was removed, unless the parent and district agree otherwise. If the conduct is determined not to be a manifestation, the student may be disciplined like a regular education student, though the district must continue to provide the child with a FAPE. Other procedures apply when the child’s conduct is of a particularly serious nature (e.g., possession of weapons or drugs on school property, infliction of serious bodily injury on another person on school premises). If a district does not follow the disciplinary procedures, the IDEA recognizes that such procedural violations may amount to a deprivation of FAPE.

The Taunton case concerned Adam, a 17-year-old Taunton high school student, who was on an IEP under the category of emotional impairment and presented with ADHD, PTSD, Reactive Attachment Disorder, Oppositional Defiant Disorder, and a possible communication disability. On March 11, 2016, Adam received a three-day out-of-school suspension for “Disrespect to Staff, Disruption at School Assembly, Inappropriate School Behavior, Insubordination – Major, Phone-Electronics Violation, Threatening School Staff, Vulgar or Obscene Language.” While a three-day suspension on its own would not have required Taunton to conduct a manifestation determination, Adam had already been suspended for at least 27 days without any manifestation determinations, even though the suspensions added up to well over the 10-day threshold, and without an FBA completed.

During Adam’s three-day suspension in March 2016, Taunton conducted a risk assessment because his behaviors had been worsening over the course of the year. It was during this risk assessment that the administrators realized that Adam had not been offered a manifestation determination review despite his thirty days of suspensions during the school year. Apparently, no one convened the manifestation determination review because they felt they lacked appropriate information to make a judgment about whether Adam’s behaviors had been a manifestation of his disability or not. However, even the so-called risk assessment lacked fundamentally necessary elements such as an interview with Adam or his guardians, or any formal testing.

Despite multiple requests from Adam’s parent and guardians, Taunton repeatedly failed to convene a manifestation determination review until March 31, 2017, over one year after the last suspension. Even after the manifestation determination review, at which Adam’s mother testified regarding the impact that his disabilities have on his behaviors and her belief that his IEP was not being properly implemented, Taunton still did not determine whether Adam’s behavior had been a manifestation of his disability. Instead, the district presented Adam’s mother with another consent form for an extended evaluation.

In the intervening year between the suspension in March 2016 and the manifestation determination review in March 2017, Adam received between two and six hours of tutoring per week. He received a limited number of credits for his work. No counseling services were provided. Pursuant to IDEA, tutoring is not a placement, but Taunton repeatedly indicated that Adam would not be allowed to return to Taunton High School unless and until he completed an extended evaluation. While his guardians refused consent for an extended evaluation initially, due to concerns regarding Adam’s previous experiences in the proposed placements, the guardians did ultimately consent to the evaluation in September 2016 after significant pressure from Taunton. However, Adam never attended the extended evaluation program. At Adam’s annual review meeting in December 2016, Taunton refused to draft an updated IEP for Adam until he completed an extended evaluation.

At hearing, the district contended that although it failed to hold a timely manifestation determination review, there was no evidence that the district failed to provide Adam with a FAPE or caused him educational harm. The hearing officer sharply disagreed, holding that Taunton’s significant procedural violations amounted to a violation of Adam’s right to a free appropriate public education. The hearing officer found that Taunton had changed Adam’s placement (by providing him tutoring instead of a placement) without parental consent and without the appropriate procedural protections, did not provide Adam the ability to attend his stay-put placement (Taunton High School) during the pendency of the dispute, and did not provide him with a FAPE while he was out of school. Going even further, the hearing officer considered the procedure that Taunton should have followed as well as the information available at the time and concluded that Adam’s behavior in March 2016 had been a result of his disability.

The hearing officer noted that Taunton’s failure to convene the manifestation determination review was egregious and that Taunton’s decision to propose an evaluation instead of making a determination at the manifestation determination review a year later “circumvents the purpose of the process, which aims to prevent a student from being disciplined for conduct that is a manifestation of his disability.” After finding that Taunton had violated Adam’s right to a FAPE for over a year, she ordered Taunton to allow Adam to return to Taunton High School, to conduct a functional behavioral assessment, to initiate the three-year re-evaluation process, and to provide him with compensatory services for the time period during which he received tutoring instead of an educational placement. She further recommended staff training regarding the discipline of students with disabilities and referred the matter to the Department of Elementary and Secondary Education for follow-up.

District Violated Regulations Regarding Team Meeting Attendance but No FAPE Violation Occurred

The student in Lexington Public Schools and Curtis, BSEA #1600388, 23 MSER 111 (Reichbach, June 30, 2017), suffered from depression so severe that he was unable to leave the house. His previous school district (Winchester) had indicated that he required specially designed instruction but he was unable to access such instruction without medical intervention. Winchester’s IEP designated a shorter day for Curtis. Subsequently, Curtis and his family moved to Lexington and the parents provided Lexington with a copy of Curtis’s Winchester IEP. Lexington placed Curtis in all general education classes, including Latin, since the only special education services listed on his IEP were counseling, academic support, and transition skills. Curtis’s mother sent an email expressing her concern that a full load of general education classes would not permit Curtis to have a shorter school day, and Lexington modified the schedule somewhat. However, Curtis’s attendance and ability to access the curriculum declined over the first semester of school. Meanwhile, Lexington conducted an evaluation of Curtis and subsequently proposed an increase in special education supports. By February, the Team removed all general education classes from Curtis’s schedule and proposed an increase in special education supports. However, the parent rejected the district’s proposed amendment because Curtis had expressed a desire to graduate and that she therefore did not want to accept a proposal that did not include the necessary academic courses to allow Curtis to graduate. In April, the parent submitted a home and hospital form, requesting tutoring instead of school attendance. Lexington provided tutoring, despite the fact that Curtis was working a part time job and was not confined to his home. Lexington engaged Dr. Jeff Bostic as an educational consultant, and he provided several recommendations regarding Curtis’s programming. Subsequently, after another attempt at amending the student’s Lexington High School IEP, Curtis began attending the SEEM Collaborative pursuant to an accepted IEP.

Meanwhile, the parent filed a complaint with Program Quality Assurance Services (PQA), alleging a number of procedural violations, including attendance at Team meetings. PQA agreed with the parent that Lexington had violated requirements to seek parental consent to excuse Team members who did not attend, and requirements to list the names of each person who would be attending the meeting on the invitation. Although Lexington delivered trainings to its staff regarding Team meeting attendance requirements, those who testified at the hearing in Curtis’s case still did not understand what was required of them.

The parent alleged that Lexington’s procedural violations with respect to the implementation of Curtis’s IEP upon his transfer into the district, the addition and subtraction of general education classes and other services to Curtis’s schedule without her consent, and irregularities with respect to Team meeting attendance, had deprived Curtis of a FAPE. Lexington acknowledged its errors regarding the Team meeting attendance issues but disagreed that any FAPE violation had occurred, since Curtis’s mother was involved with his education and since its implementation of Winchester’s IEP was proper under the circumstances.

The hearing officer ultimately held that although Lexington did commit procedural errors, those errors did not amount to a change in placement and, even in combination with other errors regarding attendance at Team meetings, no deprivation of FAPE had occurred. Lexington had used the Winchester IEP’s service delivery grid to create a grid for use in district that included approximately the same number of minutes of special education programming. Given that the Winchester IEP did not indicate any support in the general education environment and did not specify a substantially separate placement, as well as Curtis’s stated desire to graduate, the district had put him in general education classes as well. The hearing officer was therefore unable to agree with the parent that the Lexington IEP represented a fundamental change to the program he had been receiving in Winchester. Lexington’s addition and removal of general education courses to Curtis’s schedule did not involve his special education services, and so the procedural irregularities inherent in this process did not constitute a change in placement. With respect to Team meeting attendance issues, the hearing officer found that no FAPE violation had occurred since Curtis’s mother was afforded the opportunity to participate and indeed did participate. The hearing officer did express concern regarding Lexington’s “enduring confusion” about Team membership, notice as to attendance at Team meetings, and procedures to be followed when Team members are absent, particularly after PQA had ordered the district to participate in corrective action with respect to this issue. The hearing officer referred the matter to DESE for follow-up.

It seems that much of the Parent’s argument in this case was based on the dissimilarity between Curtis’s Winchester program and his Lexington program. Yet the parent did not appear to describe—either for Lexington or the hearing officer—the program that the student participated in in Winchester. Furthermore, it is not clear what remedy the Parent was requesting from the hearing officer. It appears that the entire issue could have been avoided with communication between Lexington and Winchester special education personnel at the outset. At the very least, the failure to include more information regarding Winchester’s program made it very hard for the parent to carry her burden of proving that Lexington’s transfer IEP failed to reproduce the program in Winchester.

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PLACEMENT DECISIONS

In real estate it is said that the three most important factors are location, location, and location. In special education, one might say that placement is the equivalent in importance. The legal standard for determining whether a placement is appropriate is well-defined and often re-stated in placement cases. Once a student with a disability is found eligible for special education services, that student is entitled to be placed in a program that is tailored to his/her unique needs and potential and designed to produce “meaningful educational benefit” and “demonstrable improvement” in the student’s areas of special needs—e.g., academic, behavioral, or social/emotional. Special education law specifies that the student must be placed in the least restrictive environment that would accomplish the student’s goals; that is, in a placement or program that offers the greatest amount of integration in or exposure to the mainstream environment of a typical school while still meeting the student’s special education needs. A private school that serves special needs students exclusively is only appropriate when the nature or severity of the student’s disability is such that the student cannot receive a free appropriate education (FAPE) in a less restrictive setting. A residential school is one of the most restrictive placements and is only appropriate when 24-hour services are necessary to enable the student to make meaningful progress in his or her areas of need.

Given the importance of the decision on placement, it is not surprising that five of the nine BSEA decisions in the second quarter of 2017 involved disputes over placement. More unusual is that four of the five placement cases involved Boston. In three of the five decisions involving placement disputes—Boston Public Schools, BSEA #1707797; Boston Public Schools and Ulani, BSEA #1706472; and Norton Public Schools, BSEA #1609348—Boston and Norton Public Schools convinced the hearing officers that the public schools’ proposed placements were appropriate despite the objections of the parents. It should be noted that parents in these three cases were not represented by attorneys and the parents either presented no experts or ineffective experts to support their positions.

In both of the Boston placement cases where the parents were represented by lawyers, the parents prevailed. The hearing officers in Boston Public Schools, BSEA #1702809 and Boston Public Schools and Mass. Dept. of Mental Health, BSEA #1707907 ordered Boston to provide residential placements for the students despite Boston’s claims that a day placement was sufficient or that DMH was responsible for the residential placement.

Pro Se Parents Want Inclusion but in Absence of Convincing Experts to Support the Parents’ Position, Boston’s Substantially Separate Classroom Is Found Appropriate.

It is not the usual scenario, but certainly not unique, that parents are advocating for full inclusion for their special needs child, while the school district asserts that inclusion cannot provide what the student needs and that a substantially separate placement is required. In Boston Public Schools, BSEA #1707797, 23 MSER 30 (Putney-Yaceshyn, April 14, 2017), the district filed for a hearing to seek a ruling that the student required a substantially separate program in the district despite the mother’s insistence that her son should continue to be placed in the full inclusion classroom.

There was a disagreement about whether the Student had an autism spectrum disorder, but Student’s neuropsychological testing at Children’s’ Hospital led to a diagnosis of intellectual disability and cognitive abilities in the Extremely Low range. Other test scores revealed significant concerns for behaviors associated with self-direction, including the ability to regulate body and feelings; difficulties with functional academics; difficulties with school behavior, including challenges with compliance to rules/routines and respect for property; health and safety issues, encompassing the ability to show caution when needed and avoidance of dangerous conditions. Seven Boston teachers and administrators with personal knowledge of the student testified to the problems that the student had in the full inclusion classroom. The Crisis Intervention Team had to be called for one incident.

The only witness opposing the strong Boston testimony was the Student’s mother. She testified that Student’s needs could be met in an inclusion setting and that he had no needs that had to be addressed outside the inclusion setting. Given the list of horrors that the teachers described, this testimony strained credulity and, as the hearing officer noted, “Mother’s position was not supported by any expert testimony or document in the record.” The final straw was probably the revelation that when Mother had transferred the student from Quincy Public Schools, she had not shown Boston the Quincy IEP and had not informed Boston that the Student had been in a substantially separate program in Quincy, not an inclusion classroom.

In the other Boston placement case, Boston Public Schools and Ulani, BSEA #1706472, 23 MSER 103 (Byrne, June 16, 2017), the district proved that the Student, who had a communication impairment, an intellectual impairment, and a learning disability, required continuation in a substantially separate program in high school similar to one that had been successful in eighth grade, rather than inclusion. Despite agreement that Ulani had done well in Boston’s substantially separate program in the eighth grade at the Lyndon School, the parent rejected the IEP offering similar programs at the Excel High School, which the parent rejected without visiting or having a credible expert visit, and at the New Mission High School, which Boston proposed after the mother rejected Excel. Both programs for ninth grade had services and structure similar to the Student’s successful eighth grade program at the Lyndon School.

As in the other Boston case where the parent did not have an attorney, the parent here was disadvantaged by a lack of effective expert witnesses to support her position. First of all, her independent neuropsychological evaluation at the Tufts Center for Children with Special Needs recommended almost exactly what Boston was proposing—a “small, substantially separate, language-based program with counseling support for students with specific learning disabilities.” In fact, the IEP Team accepted the findings and recommendations of the Tufts evaluation, and the Team determined that Boston had programs that fulfilled those recommendations—substantially separate programs with certified special education teachers trained in the Wilson method. The parent disagreed, asserting that “no Boston public high school could meet Ulani’s needs” and that Boston should place Ulani at the Learning Prep School. The only support for that position was from a witness from Tufts who gave a positive description of the program at New Mission Hill but then concluded, without explanation, that the New Mission Hill program could not meet Ulani’s needs. The hearing officer noted that this witness had difficulty remembering details of her visits to New Mission Hill High school and displayed “unwarranted hostility to questions posed by Boston and the Hearing Officer.” The Hearing Officer accorded “minimal weight” to the testimony of this expert witness and found that “the parent did not carry her burden of showing by a preponderance of the evidence that Ulani’s learning needs are of a type or severity that cannot be appropriately addressed in a public school program or that Boston failed to develop or offer an IEP and placement that is reasonably calculated to ensure the delivery of a free appropriate public education to Ulani.” The Hearing Officer never reached the issue of whether Learning Prep was appropriate, because she found that Boston’s proposed IEP’s were appropriate and that the parent “offered no substantive educational support for her objection” to Boston’s proposed placements and “no evaluation or expert testimony [that] contradicted the Team’s decision that Excel High School would be an appropriate high school placement for Ulani.” When the parent kept the Student out of school because she objected to the placement, Boston even provided home tutoring without being required to do so, which the hearing officer found to be “a generous and flexible response to Ulani’s difficult situation.”

Pro Se Parents Unsuccessful in Attempt to Seek Funding for Home Services from District

In the case of Norton Public Schools, BSEA #1609348, 23 MSER 40 (Berman, April 18, 2017), the student (10 years old at the time of the dispute) had spent the previous two school years (2014-2015 and 2015-2016) in a substantially separate program in the district for students with autism spectrum disorder. The student’s disabilities affected most areas of his functioning, including communication, academics, fine and gross motor skills, socialization, and adaptive behavior. The student had a history of some maladaptive behaviors, including self-injurious behaviors (SIB), vocal stereotypy, and mouthing. His cognitive abilities ranged from very low to borderline. The student’s program was based on the principles of Applied Behavior Analysis (ABA). The program was located in a Norton elementary school and overseen by the district, but it was operated and staffed by outside autism specialists from Amego and then RCS under contract with the district.

However, for the 2016-2017 school year, the autism program in the district would no longer have any peers who shared student’s profile, and the student would be the only child in the special education class. Norton therefore proposed an IEP, drafted by the student’s BCBA, that had similar services to what had been shown to be successful in the previous programs, but the proposed placement would be in the Specialized Elementary Alternative Program (SEAP) operated by the BICO Collaborative housed at the Jackson School, a public school in Plainville. As in the previous programs in Norton, the BICO program provided for inclusion opportunities within a public school.

The parents rejected the proposed IEP and placement and filed a hearing request, requesting that the BSEA order Norton to fund home-based services for the student, whom the parents were home-schooling. Thus, as with all parent challenges to the appropriateness of a district’s IEP or placement, the parents had to prove that Norton’s proposed placement was not reasonably calculated to provide a FAPE.

First, Hearing Officer Sara Berman pointed out that services in the proposed IEP were similar to the services in the previously accepted and successful IEP, in that they were based on ABA principles and addressed all of Student’s undisputed areas of need with roughly the same number of hours of direct instruction in life skills, academics, speech/language and physical therapy, and adaptive physical education, as well as an extended school day for the home services and an ESY program for the summer. Noting that the parents, who were pro se but assisted by an advocate, “presented no evaluations or other objective information to support their actions, either to the Team or at the hearing,” the hearing officer had no difficulty determining that “the overwhelming weight of the evidence in this matter indicates that the proposed IEP and placement for the 2016-2017 school year were appropriate for Student.” Citing the standards enunciated in the recent Supreme Court case of Endrew F. at 69 IDELR 174, the hearing officer held that the proposed IEP and placement offer[ed] the student goals that are “appropriately ambitious in light of his circumstances and a placement calculated to enable him to reach those goals.”

Parent anger and hostility toward the IEP Team and the district is evident in reading this decision, and the hearing officer found the parents’ litany of alleged procedural violations all unfounded. Among the claimed procedural violations were the following:

1. The parents claimed that the district violated their procedural rights by proposing the new placement without their participation. The Hearing Officer pointed out that the parents had refused to attend an annual meeting and then continually said they were not available.

2. The parents claimed that the Team had “pre-determined” the proposed placement before the meeting. The hearing officer pointed out that “it seems prudent and appropriate for school members of a Team to be informed about possible placements in advance of the meeting so that they can share this information with Parents” and that Norton did not propose the placement in a formal manner until after the IEP had been developed.

3. The Hearing Officer found that, contrary to the parents’ allegations, Norton did offer the summer ESY, and that “parents have presented no evidence to the contrary.”

4. The hearing officer also rejected Parents’ claim that Norton did not provide home services to the student after the student broke his arm and the parents presented notes from doctors. The hearing officer pointed out that “the requisite standards for a home-based ESY program were not met. Parents submitted a total of four notes from medical providers, none of which contained all of the information required by the DESE Guide or regulation.” The parents did not respond when the district sought additional information about the student’s condition.

Finally, there was a serious issue with the advocate, who participated by phone on the first and second day of the six-day hearing and “thereafter declined to participate either in person or by telephone.” The District requested costs and sanctions for alleged misconduct by the advocate. Although the alleged misconduct by the advocate was not described in the decision, the hearing officer wrote that although she was not persuaded that the BSEA had authority to impose costs and sanctions, “such denial should not be construed as validation or approval of the advocate’s conduct in this matter.”

Once the hearing officer found that Norton’s proposed placement was appropriate, she did not need to reach the issue of determining whether the parents’ proposed program of home services provided a FAPE. The outcome of this case was foreshadowed by: 1) the fact that the parents had no evidence or expert witness to support their opposition to the proposed placement; 2) the fact that every one of the alleged procedural violations that the parents claimed prevented the student from receiving a FAPE was determined to be the fault of the parents for being uncooperative, not the district; and 3) the unspecified improper conduct by the advocate. Like the previous two placement cases, the parents had very little chance of success.

Parents Succeed in Proving That Students Require Residential Placements Over Boston’s Objections

In two Boston cases, the parents proved that the day programs proposed by Boston Public Schools did not provide a FAPE, and that the students required residential programs to make meaningful progress.

The fifteen-year-old student in Boston Public Schools and Mass. Dept. of Mental Health, BSEA #1707097, 23 MSER 59 (Berman, May 8, 2017), was ready to be discharged from the locked adolescent unit of a psychiatric hospital, the Worcester Recovery Center and Hospital, operated by the Department of Mental Health. Boston contended that the therapeutic day program at the McKinley School could provide student a FAPE, either on its own or in conjunction with a residential setting provided by DMH, presumably a group home. Boston’s fallback position was that if the hearing officer determined that the student required a residential placement, the residential placement was necessary due to the student’s complex medical and psychiatric profile, not for educational reasons, and therefore DMH would be responsible for the residential placement. DMH had determined that the student was ineligible for DMH services due to a diagnosis of autism spectrum disorder. DMH asserted that because it had found the student ineligible, the BSEA did not have authority to order DMH to provide services. The parents wanted the BSEA to order Boston to send out referral packets to several potentially appropriate residential therapeutic schools.

Hearing Officer Sara Berman agreed with the parents’ expert witnesses that the student required placement in a residential setting and ordered Boston to send referral packets to residential therapeutic schools. She specifically mentioned Dr. Franklin Perkins, Walden Street, and Glen Haven as potentially appropriate placements. The order was based on what is frequently mentioned as the critical finding for ordering the school district to fund a residential placement: the student’s educational needs are “inextricably intertwined” with her clinical and psychiatric needs. The hearing officer cited the expert witness testimony from the student’s providers that the student could not access an academic education unless she was emotionally stable and that emotional stability had to be taught and learned via individual and group therapy as well as in-the-moment coaching. The hearing officer also pointed out that learning how to self-regulate is one of the student’s “most critical educational needs” and this was noted in the student’s IEP as one of student’s primary educational goals, both inside and outside the classroom. Since the evidence presented at the hearing “overwhelmingly establishes that Student’s intertwined needs can only be met in the context of an appropriate residential placement, . . . Parents and Student have more than met their burden of demonstrating that Student needs a residential placement for educational reasons, and that [Boston] is responsible for providing such a placement.” The hearing officer also noted that even if DMH affirmed its finding of ineligibly based on a four-year-old diagnosis of autism spectrum disorder that several other experts have contested, the student will likely need the types of clinical support and safety-related supervision that DMH can provide in a residential program that is funded by the school district.

In the second case ordering Boston to fund a residential placement,[2] the 19-year-old student in the twelfth grade had been in the day program at Cardinal Cushing since ninth grade and the issue was whether she needed to be in the residential program at Cardinal Cushing in order to achieve her transitional goal of living in a supported group home. The parent and her expert witnesses asserted that additional home services would not be sufficient and that the student needed the intensity, consistency, structure and reinforcement that a 24/7 program would provide in order to derive the necessary educational benefit that would allow her to be as independent as her potential allowed when she transitioned out of special education in approximately three years. The student, who exhibited numerous interfering/non-compliant/aggressive behaviors resulting from her Down Syndrome, Autism Spectrum Disorder, Mood Disorder, Communication Disorder, and other health related disorders, also suffered from sleep apnea, but she did not consistently wear her Continuous Positive Airway Pressure device (CPAP). The parents contended that the evening/awake staff at Cardinal Cushing could make sure that student used her CPAP, which was critical for her health and availability to receive education.

Testifying for the parent and strongly supporting the need for a residential placement were highly qualified experts from Massachusetts General Hospital, including evaluators and experts in Down Syndrome and Autism Spectrum Disorder, and the BCBA who provided privately funded home services. These experts observed the student at home and in the day program and spoke with teachers and providers about the student’s needs. Witnesses from Cardinal Cushing described the residential program and discussed the student’s needs.

Hearing Officer Rosa Figueroa reiterated the importance of transition in special education, noting that for students between the ages of 18 and 21, an integral concept of FAPE is the IDEA’s mandate that eligible students be prepared for further education, employment, and independent living, taking into account the particular student’s potential regarding those goals. Among the factors that the expert witnesses pointed to in determining the need for a residential placement were the following:

· Student’s adaptive functioning had declined between 2016 and 2017, and she required residential programming to acquire the skills needed to enjoy a more independent life. In the home environment, she would not be able to internalize the skills she required.

· Student possessed the ability to acquire and master new skills, but required the consistency of a structured residential program, where the faculty and staff were trained in developing skills and working with students who manifest severe cognitive and behavioral deficits, to address them effectively.

· After observing student in the home, an expert with experience in Down Syndrome and Autism Spectrum Disorders described the student as an associative learner, noting that the home environment was not appropriate for instruction because at home the Student saw herself as a child, which did not contribute to student’s independence. This expert testified that the student had the potential to acquire skills, but at home other things get in the way of her learning.

· There was testimony from several expert witnesses that the Student required a residential placement to learn and master ADL’s in a functional fashion and to get into a more adult/independent state of mind.

· There was expert testimony that student’s sleep apnea could be better addressed in a residential program where student would have increased access to peer modeling and awake overnight staff, which was not possible at home.

· Experts testified that only in a residential program would providers have the ability to consistently “wait out” the student while she exhibited maladaptive behaviors or stalling. The ABA charts being kept at school and at home showed that the non-compliant behaviors were much less frequent at school.

· Significant home services were being provided and Boston’s suggestion of an additional ABA session in the morning would not be sufficient to facilitate student’s effective progress toward her transitional goals.

· Experts testified that parent’s presence, although motivating to the student, had become a major distraction, because when the Student heard the parent’s voice, she stopped what she was doing. As result, parent often had to lock herself in her room or wait in her car while student was doing her home ABA routines.

· Parent was having great difficulty controlling student’s concerning behaviors, such as verbal and physical aggression (scratching, hitting, kicking).

· Student’s safety in the community was in jeopardy if she did not learn to comply with instructions from authority figures such as TSA agents and police officers. She would not be able to live in a group home (which was her goal) unless she learned how to comply with instructions from authority figures.
The hearing officer credited the parent’s expert witnesses and agreed that the student in this Boston case needed to improve upon and master necessary life/transition skills, and that “Student’s significant educational needs in the behavioral, social, and life skills domains can only be appropriately addressed in a residential placement, particularly given the limited time left in her entitlement to special education.” Thus “Parent has met her evidentiary burden of persuasion that Student requires residential placement in order to make effective progress and receive a FAPE.”

RULINGS

Parents Given Access to Peer IEPs During Discovery Process

The ruling in Andover Public Schools, BSEA #1706174, 23 MSER 55 (Figueroa, April 20, 2017), added to the long line of similar rulings granting parents access to redacted peer IEPs as part of the discovery process. Andover objected to producing the IEPs on two grounds: (1) that the peer information sought was not relevant to the appropriateness of the IEP proposed for the student and was not likely to lead to the discovery of relevant information; and (2) that such disclosure violated state and federal statutes and regulations concerning the privacy of student information. Parents argued that information concerning potential peers was highly relevant regarding the appropriateness of the proposed placement and that producing the peer documentation cleansed of personally identifiable information (as requested) would not violate student privacy. The hearing officer, citing state and federal laws concerning student records and discovery as well as to precedential rulings on this issue, found that peer IEPs were “directly relevant” to the question of the appropriateness of Andover’s program for the student and that the release of such information did not violate privacy laws. Thus, Andover was ordered to produce redacted peer IEPs within a 10-day timeframe, subject to a number of additional protections that would protect the privacy of the students’ information. However, the hearing officer did not order Andover to produce evaluation reports on each of the potential peers, noting that evaluation reports contain highly sensitive information regarding a child (e.g., family history) and, once redacted, reports “would be unlikely to yield any meaningful information that is not already provided in an IEP or 504 plan.”

While we agree that evaluation reports do contain information that is highly sensitive and not readily redacted, we do not agree with the hearing officer that relevant information regarding a student’s profile is always contained in IEPs. While some IEPs do provide, as the hearing officer suggested, a complete picture of a student’s profile such that the document can serve as a “one stop shop” for anyone wishing to understand a student, other IEPs fall woefully short of this goal. Before having seen the IEPs and without knowing what else is in a student’s file (e.g., an independent neuropsychological report that is not summarized in the IEP), it is difficult for a parent or a parent’s expert to understand whether the IEP does or does not provide enough information in order to understand whether a peer group is or is not appropriate for a child.

District’s Motion to Dismiss Granted

In Reading Public Schools, BSEA #1706923, 23 MSER 81 (Berman, May 19, 2017), the district had until May 31, 2017 to convene a Team to propose a program and placement for the student for the 2017-2018 school year. The parents filed a hearing request well before that date, in February 2017, alleging that Reading’s proposed placement (the placement from the last IEP that Reading had proposed prior to the settlement agreement) was inappropriate. Reading filed a motion to dismiss the parents’ claim, pointing out that the district had until May 31st to propose a placement for the following year. The hearing officer in Reading Public Schools, BSEA #1706923, 23 MSER 81 (Berman, May 19, 2017), agreed, indicating that the settlement agreement superseded the previously proposed IEP and that there was no live case or controversy that was ripe for adjudication.

It seems clear that the parents felt strongly that placement back in the district would be inappropriate for their child and that it would be better to get a ruling to that effect sooner than later from the BSEA. However, if a settlement agreement allows the district to wait until May 31st before proposing a placement for September, the parents must also wait to challenge that placement as inappropriate until they know what it will be. The remedy here would have been to negotiate a considerably earlier Team meeting date in the agreement, giving the parents time to investigate the proposed placement and to seek a ruling on the appropriateness of such placement before the BSEA well in advance of the start of the school year.

DDS Joined in Parents’ Bid for Residential Placement

In Acton-Boxborough Regional School District, BSEA #1703770, 23 MSER 99 (Figueroa, January 10, 2017), parents sought residential placement for their 21-year-old son, who attended the League School as a day student pursuant to an Acton-Boxborough IEP. Acton-Boxborough sought to join the Department of Developmental Services to the case. DDS opposed joinder, given its regulations that prohibit DDS from providing residential placement to anyone under the age of 22, its position that Acton-Boxborough was responsible for all types of placements required for educational reasons, and that parties would not be prejudiced by lack of DDS participation. Acton-Boxborough argued that joinder was proper because the hearing officer could possibly determine that the student’s day placement was adequate but that he required additional supports at home from DDS. DDS asserted that the parents had rejected Intensive Family Flexible Supports, the most comprehensive service plan available through DDS for individuals of student’s age, but the parents disputed this. The hearing officer found that Acton-Boxborough “has shown, at least in a preliminary way that it may be able to present evidence at Hearing which may result in DDS being found responsible to offer some services to Student” and granted Acton-Boxborough’s motion for joinder.

The issue of joinder of state agencies—usually DDS or DMH in cases involving requests for residential placement for students who are of transition age—comes up quite often in BSEA case law. However, despite the DDS regulations and its consistent arguments as to why it should not be joined in cases like the Acton-Boxborough case, hearing officers’ decisions are not always predictable. See, e.g., Boston Public Schools, BSEA #1702809, 22 MSER 239 (Figueroa 2016) (denying Boston’s motion to join DDS in part because parent sought a residential placement and DDS could not be ordered to provide one in accordance with its own regulations).

Discovery Dispute

In Scituate Public Schools, BSEA #1702015, 23 MSER 102 (Figueroa, January 17, 2017), Scituate filed to compel documents from the parents, both via discovery requests directly to parents and via subpoenas to third party treating providers. It seems the parents were concerned that the subpoenaed documents would include information that was highly sensitive and yet not relevant to the hearing process and that they were trying to withhold it from Scituate despite the subpoenas. For their part, the parents alleged that Scituate had not provided them with a complete student record.

The hearing officer ordered the parents to comply with Scituate’s discovery requests and to allow their treating providers to respond to Scituate’s subpoenas, along with a request for an in camera review of sensitive records by the hearing officer. The hearing officer ordered Scituate to provide the parents with a complete student record or information that a requested record did not exist.

Interestingly, the hearing officer also made it clear to both parties that the hearing would proceed on the scheduled dates despite a pending neuropsychological evaluation and the parents’ request for mediation, especially in light of the fact that the student was hospitalized while the process was ongoing.

CONCLUSION

As is the case each quarter, the hearing officers produced a set of well-reasoned rulings and decisions that amply reflect their expertise with and respect for the special education process and the families, students, and districts involved therein.
[1] This issue of the MSER includes various decisions and rulings that predate the quarter.
[2] One of the commentators of these second quarter cases, Attorney Melanie Jarboe, represented the parent with Attorney Daniel Heffernan.