Overview

Commentary on Massachusetts Special Education Decisions: 4th Quarter, 2014, by Eileen M. Hagerty and Melanie R. Jarboe:

March 19, 2015

INTRODUCTION

During the fourth quarter of 2014, the Bureau of Special Education Appeals (“BSEA”) issued six decisions and nine rulings. One decision (Tewksbury, which also involved a subsequent compliance ruling) concerned the location and timing of special education services to be provided to a parentally placed private school student. Two decisions concerned disputes over in-district versus out-of-district programs: in one (East Longmeadow), the parent was denied reimbursement for a unilateral placement at the Speech Academy, a private program in Connecticut, and in the other (Concord-Carlisle), the hearing officer rejected the parents’ request for placement of a 19-year-old with transition needs at a collaborative. Another decision (Malden) involved the choice between two in-district programs; the hearing officer sided with the district and ordered the student placed in the more restrictive and more specialized program that the district proposed. A fifth decision (Abington) featured dueling parents, dueling placements, and a district’s flagrant disregard of a Team’s placement decision. A final decision (Pembroke Public Schools, BSEA #1310012C, 20 MSER 235) will not be discussed, as the parent, after requesting a compliance hearing, failed to attend and failed to submit exhibits or witness testimony; not surprisingly, the result went in favor of the district.

The rulings cover a variety of issues. Two (Quincy and Andover) consider the recurring question of whether another state agency (DMH, in both cases) is a necessary party to a BSEA proceeding. The Quincy case also produced a ruling requiring DMH to comply with stay-put. Two rulings (Georgetown and Winthrop) address another perennial topic: the need to exhaust administrative remedies by filing with the BSEA, even when the remedies that the parents seek (money damages on personal injury claims) are not within the BSEA’s power to award. Another ruling (King Philip) examines issues that arose in the disciplinary context when the student had been in special education at the time of the misconduct, had revoked his consent to special education after that incident, withdrew his revocation, and then received an expulsion notice. The ruling in another case (Masconomet), though a garden-variety denial of a motion to dismiss, raises interesting questions concerning statute of limitations issues. Lastly, a ruling confirming the DESE’s assignment of LEA responsibility (Amesbury) summarizes the factors to be considered in determining where a student resides.

As always, the BSEA hearing officers provide thoughtful discussions of the myriad issues that come before them. As always, there is much that practitioners can learn from those discussions.

First Circuit Interprets Settlement Agreement in Special Education Case

Before commenting on BSEA decisions, we would like to bring a new First Circuit case to our readers’ attention. As many are aware, “BSEA Hearing Officers are split as to whether they may consider an agreement relative to a party’s rights and obligations under special education law.” Lowell Pub. Sch., BSEA #12-1912, 17 MSER 322, 323 (Crane, 10/19/11) (citing cases). In December 2014, the First Circuit held that the federal courts may consider such agreements, when relevant, in reviewing a hearing officer’s decision. South Kingstown Sch. Comm. v. Joanna S., 773 F.3d 344 (1st Cir. 2014). The Court expressly declined to decide whether a hearing officer has the authority to consider a settlement agreement. Anyone who has a case involving the scope or interpretation of a settlement agreement in a special education matter would do well to review South Kingstown.

Hearing Officer Enforces District’s Responsibility to Parentally-Placed Private School Student; District Later Found to be in Compliance with Hearing Officer’s Order

Under Massachusetts’ special education law, students who reside in Massachusetts and attend private schools at their parents’ expense (“parentally-placed private school students”) have an individual right to receive FAPE, which must be provided by the district where the student resides. This quarter, Tewksbury Public Schools, BSEA #1404036, 20 MSER 220 (Oliver, 10/17/14), provides an interesting discussion of some of the issues—and demonstrates some of the misunderstandings—that can arise in such cases.

The student in Tewksbury was a 17-year-old who was diagnosed with a specific learning disability, communication impairment, and an emotional impairment. He attended the Tewksbury Public Schools from first through fifth grades. Thereafter, he attended private schools, first in Andover and then in Methuen. The district correctly continued to develop IEPs for him and to perform periodic evaluations after he left public school.

The parents accepted two IEPs (9/11-6/12 and 10/12-10/13) that proposed speech-language therapy, to be provided at the public school during school hours. The district committed its first mistake when, inexplicably, it failed to provide the student with any services at all. (The parents, in their IEP response, had requested that the services occur outside of the student’s school hours. If the district viewed this as a rejection, it would not have been justified in doing so, as the parents had raised the timing of the services only as a request, and not as a condition of acceptance.)

Following a re-evaluation, the district found the student ineligible. The parents rejected that finding and asserted the student’s stay-put rights. The district made its next mistake when it failed to provide the student with the services specified in his stay-put IEP.

After the student received independent neuropsychological and assistive technology (“AT”) evaluations, the district reversed its position and found the student eligible again. Proposed IEP services included speech therapy, reading instruction, counseling, social skills training, and AT, all to be provided at Tewksbury High School (“THS”). The parents accepted many of the services, but refused the placement.

The parents filed pro se for hearing. They sought various forms of prospective relief, including an order requiring provision of services at the private school. The parents also sought reimbursement and compensatory education as a result of Tewksbury’s past and continuing failures to provide accepted IEP services and stay-put services.

The district again demonstrated questionable understanding of the laws applicable to private school students when it moved to dismiss the parents’ case, citing a federal regulation (34 C.F.R. § 300.140) that states that parentally-placed private school students have due process rights only for “child find” violations, which were not at issue in this case. It is a basic tenet of IDEA jurisprudence, however, that the states are free to exceed the basic “floor” of rights set forth in federal law. In this case, the hearing officer had no trouble determining that the BSEA did have jurisdiction and the parents and student did have due process rights, resting on the clear entitlement to FAPE that Massachusetts law confers on all special education students, including parentally- placed ones.

The hearing officer turned next to the issues surrounding the current IEP. Here, it was the parents’ turn to demonstrate confusion about the law. Although the hearing officer explained on the record that state law prohibited him from ordering the provision of services with state or local funds on the premises of a private school, see 603 CMR 28.03(1)(e)(3), the parents persisted in seeking an order requiring the district to do just that.

Not surprisingly, the hearing officer refused to order the district to provide services to the student on the grounds of the private school. He did, however, order the district to provide speech therapy and AT, using private providers requested by the parents, “at a neutral site as close as possible to [the private school],” before the private school day began or after it ended. 20 MSER at 226. He entered a similar order with regard to reading services, should the parents wish to accept them. The decision process was presumably made easier by the fact that, although the student’s IEP specified services at THS, the special education director testified that the district was willing to provide the speech and AT services, by the private providers whom the parents preferred, at a neutral site in the town where the private school was located (Methuen) and at times that would not interfere with the student’s class schedule. This is a reasonable solution that clearly satisfies the requirements of 603 CMR 28.03(1)(e)(3).

One hopes that the same result would have obtained even if the district had not (belatedly) offered it. Too often, however, districts do what Tewksbury did for a period of years in this case, constructively denying the services by imposing impossible conditions:

· Offer services but insist that they will only be provided at one of the district’s public schools, which may be miles away from the private school;

· Offer services only during the school day, which, particularly in light of the distance between the public and private school, can mean that a student will miss several hours of his or her private school academics; and/or

· Fail to offer any transportation between the public and private schools, which can mean that, even if the parents are willing to have the student miss private school instruction to obtain services at the public school, the student has no way to get there and back.

As a practical matter, an offer like this is no offer at all. Unfortunately, it required a hearing before the district in this case at last arrived at a reasonable offer of services. Had the district done so when first asked in 2011, when the parents were willing to accept services provided at public school and were asking solely that those services be scheduled at the beginning of the public school day, then perhaps the entire litigation could have been avoided.

Even as of the date of hearing, the district was still offering to provide one service that the parents had accepted, counseling, only via the public school. The parents, who had accepted the service but rejected the location, asked that they be reimbursed for their copayments to a private counselor who had been providing the student with weekly cognitive-behavioral therapy (“CBT”), which was the type of therapy that two evaluators had recommended. The hearing officer concluded that, because the IEP failed to specify CBT, the district had no counselor certified in CBT, and the student already had a relationship with the private therapist, and given the logistical complications of “attempting to provide the IEP counseling services to [the student] given the constraints of state law,” 20 MSER at 226, the district would be ordered to reimburse the parents for copayments for the student’s weekly CBT prospectively through the end of the current school year.

The hearing officer then turned to the parents’ claim for compensatory services, based on the district’s failure to provide services under accepted IEPs and pursuant to stay-put. It was undisputed that, during the periods at issue, the parents had first accepted IEPs calling for weekly speech services and then asserted the student’s stay-put right to such services, and that the district had failed to provide any services. Clearly, therefore, the district was liable to provide the student with compensatory education. Tewksbury made another futile attempt to thwart the parents’ claims, this time citing BSEA opinions that refuse to allow FAPE claims based on an accepted IEP after the IEP period has expired. The hearing officer wasted no time in rejecting the district’s argument. “The crucial distinction,” the hearing officer stated, is that those opinions refuse to permit belated attempts to reject IEPs after an IEP has been accepted and the student has received the accepted services. 20 MSER at 226. Here, by contrast, the parents were asserting compliance claims: “the Parents accepted the IEP services but such IEP services were simply never delivered by [the district].” Id. at 227. Such claims are certainly cognizable, and the hearing officer so found.

After the hearing officer found the student entitled to compensatory services, an issue arose regarding the form that the compensatory remedy should take. As compensation for the district’s failure to provide two years’ worth of speech services, and in lieu of social skills services proposed in the current IEP, the parents requested that the hearing officer order the district to fund two 2-week summer courses for the student at Landmark College, one each during the summers of 2015 and 2016. Compensatory education is an equitable doctrine, under which a hearing officer has broad discretion; it would seem that the hearing officer could have ordered the remedy that the parents requested. He refused to do so, however, citing a number of reasons for denying the request.

Two of those reasons reflect an overly narrow view of the scope of discretion that the hearing officer may exercise in awarding compensatory relief. The hearing officer stated, inter alia, that he could not order the requested relief because “the 2015 summer is beyond the scope of the current IEP” and because “the summer of 2016 is over one year beyond the current IEP and will likely be after [the student] has graduated” from high school. 20 MSER at 227. These statements ignore the well-established doctrine that a court or hearing officer may order a district to provide compensatory services for past violations during a future period, even though the student would not otherwise be eligible for special education at that the time. See Frazier v. Fairhaven Sch. Comm., 276 F.3d 52, 63 (1st Cir. 2002) (“even after graduation, compensatory education is an available remedy”); Murphy v. Timberlane Reg. Sch. Dist., 22 F.3d 1186 (1st Cir. 1994) (affirming award of compensatory education to 25-year-old); Pihl v. Massachusetts Dep’t of Educ., 9 F.3d 184 (1st Cir. 1993) (compensatory services may be awarded to 27-year-old).

Instead of the relief that the parents requested, the hearing officer ordered compensatory relief in the form of reimbursement for CBT copayments retroactively from April 25, 2014 to the start of the current school year; reimbursement of copayments for private speech therapy from March 18, 2012 until such time as the district began providing speech therapy in accordance with the hearing officer’s order on the parents’ FAPE claim; and reimbursement for two software programs that the parents had purchased for the student.

This case resurfaced several months later, when the parents brought a motion seeking compliance with the hearing officer’s decision insofar as it required the provision of speech services at a neutral site as close as possible to the private school, before or after the private school day. Tewksbury Pub. Schs., BSEA #1404036c, 20 MSER 251 (Oliver, 12/16/14). The district had offered services by a private provider whom the parents approved, to be delivered at a collaborative 1.3 miles from the private school, with transportation provided by the district. Because the private provider was not available before or after school, the district proposed to have services delivered at the collaborative during the student’s free periods. The parents persisted in trying to have the speech therapy delivered during free periods at the private school. The hearing officer concluded that the district’s proposal for delivery of services complied with his October 2014 order.

The hearing officer also rejected the parents’ contention that the student had a stay-put right to receive special education services at the private school. As the hearing officer explained, the district had “never agreed to place [the student] at [the private school] or to fund such placement.” 20 MSER at 253. Thus, the student had stay-put rights to “the specific special education services proposed in his last accepted IEP in June 2014,” id. – as modified by the hearing officer’s October 2014 order, one might add – but he had no stay-put right to receive those services on the private school’s grounds.

Parents of private school special education students should take heart from the Tewksbury decision. The hearing officer not only enforced the responsibilities that the district had too long evaded, but he also implemented a prospective remedy that recognizes the realities, including those of timing, transportation, and location, that often prevent private school students from benefiting from the very services to which they are entitled. In comparable cases, we would refer to a district’s imposition of unworkable conditions as a constructive denial of the student’s rights and would call the district’s attention to Tewksbury.

Problems with Expert Testimony I: Hearing Officer Denies Reimbursement Claim

The decision in East Longmeadow Public Schools, BSEA #1500165, 20 MSER 254 (Byrne, 12/18/14), demonstrates some of the pitfalls for parents who request reimbursement for a unilateral placement. There, the hearing officer held that the district had provided a FAPE to the student and denied the parent’s request for reimbursement for placement at the Speech Academy, an Easton, Connecticut special education school.

The student in this case, “Taylor,” was a nine-year-old boy with multiple, complex disabilities including an autism spectrum disorder, attention deficit hyperactivity disorder, cerebral palsy with spastic diplegia and low trunk and jaw tone, verbal dyspraxia and apraxia, a severe communication disability, serious motor planning issues, and global developmental delays. Taylor functioned in the two- to three-year-old range in most domains with even weaker expressive language skills. Both Taylor’s mother and the school district seemed to agree that his most significant needs were in the communication domain. East Longmeadow asserted that Taylor required a “total communication” approach, including a voice output device and sign language. Taylor’s mother rejected the district’s approach, believing that greater emphasis should be placed on teaching and eliciting oral language.

During Taylor’s second grade year (2013-2014) in East Longmeadow, his accepted IEP provided for an extensive array of special education and related services delivered before, during, and after the school day; communication services integrated across settings; and a 1:1 paraprofessional. East Longmeadow’s “total communication” approach emphasized augmentative communication tools, assistive technology, and sign language in addition to gestures, vocalizations, word approximations, and picture symbols. At the hearing, East Longmeadow witnesses presented undisputed testimony that Taylor made progress across domains during the 2013-2014 school year, particularly in functional communication and literacy with the use of his communication device.

Taylor’s independent speech-language pathologist (whose before-school sessions were incorporated into Taylor’s IEP and funded by East Longmeadow) seemed to focus more on oral-motor production of speech sounds than the East Longmeadow staff. However, she also recommended that Taylor receive direct speech-language services targeting all modes of communication and the continued use of an augmentative communication device across all environments. Taylor’s independent neuropsychologist, Deborah Fein, Ph.D., completed an evaluation in December 2013, during Taylor’s second grade year in East Longmeadow. Dr. Fein recommended “the same intensity of services that he is receiving now with the same staff who know him so well,” together with continued use of the communication device. 20 MSER at 259. Dr. Howard Shane (who did not testify) completed a communication evaluation and also recommended the continued use of a communication device.

Given Taylor’s progress during the 2013-2014 school year, East Longmeadow proposed an IEP for the period between March 2014 and March 2015 that continued the same level of services, with an increase of two sessions per week in speech-language therapy. Taylor’s mother, however, objected to the district’s use of sign language and the augmentative communication device, and stated that she intended to “exhaust all possible methodologies designed to improve ‘verbal’ communication before moving to alternative communications devices and systems.” Id. at 260. She rejected the placement and, in large part, the IEP. She requested daily sessions of occupational therapy, physical therapy, and social pragmatics training, along with two hours per day of speech-language therapy in school in addition to the speech-language services that Taylor received outside of school pursuant to his IEP. She also requested placement at the Speech Academy, which was 85 miles away. The district denied her requests.

The parent placed Taylor at the Speech Academy in July 2014 and requested reimbursement from the district. The Speech Academy’s program emphasized intensive speech-language therapy. The school’s director assessed Taylor and recommended that he participate in a minimum of five two-hour sessions of speech-language therapy per week. Taylor’s programming did not ultimately comport with the director’s recommendation, however. Taylor did not use his communication device either at home or at the Speech Academy.

The hearing officer held in favor of East Longmeadow, denying the parent reimbursement for Taylor’s placement at the Speech Academy. The hearing officer found that Taylor had made “noticeable and measurable progress” in East Longmeadow during the 2013-2014 school year, that it was reasonable to conclude that he would likely make similar progress in a substantially similar program during the 2014-2015 school year, and that the proposed IEP therefore provided Taylor with a FAPE. 20 MSER at 260.

The hearing officer characterized the dispute as one over “methodology”—intensive and exclusive cultivation of oral speech, which the mother wanted, versus the cultivation of multiple communication methods, which East Longmeadow had been doing and proposed to continue. The hearing officer stated, “In the absence of evidence of inappropriateness or lack of benefit for a particular student a school is generally free to choose the methodological approach and instruments suited to the student’s learning need and goal. So long as the chosen methodology is carefully tailored to the student’s unique needs, and is supported by reasonable educational research, accepted practice and successful outcomes, it will be upheld.” 20 MSER at 261.

The hearing officer noted that all of Taylor’s school-based and independent providers supported the development of multiple communication methods and that the parent alone wanted an exclusive focus on speech. It is not entirely clear that the difference between a focus on oral speech and the use of a communication device can be characterized as a difference only in “methodology,” but when a parent proceeds to a hearing at the BSEA, the burden of proving that the district’s proposed program does not provide FAPE is a heavy one that generally cannot be carried without the support of multiple, credible experts. In this case, all of the parent’s experts advocated for continued use of the communication device and the Speech Academy, by the director’s admission, was not providing Taylor with a program that met the director’s own recommendations. In addition, the hearing officer stated, “Where, as here, the intended method, speech, is heavily dependent on development of foundational motor and neurological skills not within the behavioral control of the student, recommendations to limit the student’s access to alternative communication methods would perforce have to be particularly persuasive.” Id. With no “particularly persuasive” support that Taylor should be denied the opportunity to become a “total communicator,” the result in this case is not surprising. This case serves as a reminder to parents not only to make sure that they have independent evaluators and that those evaluators testify, but to make sure before filing for hearing that the relief they seek is aligned with the experts’ recommendations.

Problems with Expert Testimony II: Hearing Officer Denies Bid for Outplacement

At issue in Concord Carlisle Regional School District, BSEA #1407063, 20 MSER 205 (Putney-Yaceshyn, 10/9/14), were transition-related services for a 19-year-old student with an intellectual impairment. The district proposed a “post-graduate” placement at Concord-Carlisle Regional High School’s Pathways Program, which the student had attended for the previous four years (ninth through twelfth grades) pursuant to accepted IEPs. Her parents rejected the “post-graduate” IEP, which proposed academic, vocational, transitional, and life skills instruction. They sought to have the student placed instead at the LABBB Collaborative, believing that it would offer her the opportunity for more meaningful peer relationships and more appropriate vocational placements. The hearing officer concluded that the IEP, with modifications, was appropriate to meet the student’s needs.

This case demonstrates once again the central role that expert testimony plays in a dispute over a student’s program and placement. The hearing officer found that the parents did not meet their burden of proof because they “did not present any expert testimony with respect to the inappropriateness of the IEP.” 20 MSER at 210. The parents did present the testimony of an independent neuropsychologist, who had evaluated the student and who testified that the student required three days per week of vocational training and two days of independent skill development and social skills training. However, the neuropsychologist “had not reviewed the IEP and admitted that she was not able to make any conclusions regarding the appropriateness of the IEP.” Id. In this case, as in most FAPE disputes, the inappropriateness of the district’s proposed program was the first element that the parents needed to prove. The expert’s inability to opine on that issue was fatal.

One might argue that, merely by comparing the independent expert’s recommendations with the program outlined in the IEP, the parents could demonstrate by the IEP’s failure to satisfy those recommendations that the IEP was inappropriate. That might work in some instances, but here the hearing officer accorded little weight to the expert’s program recommendations “because she could not provide any basis for her opinion.” 20 MSER at 210.

With their testifying expert in trouble, the parents attempted to buttress their argument for different vocational placements by pointing to a recommendation made in the report of a vocational evaluator who did not testify. The hearing officer discounted this recommendation, finding it vague because it merely “stated that Student may want to explore additional career options.” 20 MSER at 210 (emphasis in original).

The parents also attempted to show the Pathways Program’s inappropriateness by pointing out that the student’s IEP goals and objectives had remained similar from one year to the next. The district asserted that because the student “continue[d] to have similar areas of strength and weakness,” the district was “still working on the same areas, but fine tuning them,” 20 MSER at 207, and that “[a]lthough Student has worked on the same skills, she has worked toward greater independence.” Id. at 208. This is a favorite argument of school districts. The opinion does not quote from any of the student’s IEPs, so it is difficult to know whether the argument was justified in this case. One notes, however, that even if the student’s larger goal areas remained similar from year to year, if she was in fact making progress toward greater independence then the objectives should have changed to reflect that fact (for example, by reflecting decreasing levels of support).

The parents further argued that the proposed program was inappropriate because the student was the only female in the post-graduate program. Here again, the independent evaluator could have made a difference but did not. According to the hearing officer, the evaluator “testified that being the only female was problematic,” but “was not able to state a specific reason.” 20 MSER at 211.

The hearing officer did find that the student required independent travel training and additional social opportunities. Her finding as to the former was based on a district witness’s agreement with a point made by the parents. Regarding the latter, the hearing officer acknowledged district witnesses’ testimony about social opportunities that they intended or hoped to provide in the future, or had provided to other students in the past, but she refused to give weight to this testimony, instead finding the district’s program deficient because “these social opportunities are not currently available.” 20 MSER at 211 (emphasis in original). This serves as a useful reminder that, in order for an IEP to be appropriate, all necessary elements must be capable of immediate implementation. Testimony describing services that a district could, would, or might provide in the future will not save an IEP that is missing any such element.

The hearing officer concluded that the district’s IEP, with the addition of travel training and social opportunities, appropriately met the student’s needs. She denied the request for placement at LABBB.

This case illustrates the importance for parents not only of having an expert witness or witnesses, but also of preparing the expert to testify clearly and convincingly. At a minimum, the expert must read the disputed IEP and be able to explain in detail why that IEP does not meet the student’s needs. (If the expert cannot do so, the case should not be brought.) The expert must also be able to explain the basis for each of his or her opinions, and should be asked when testifying to do so in detail. Lastly, experts should pay close attention to their choice of words when writing their reports and make sure that their reports say what they mean. Sometimes independent experts, to avoid appearing to dictate to school personnel, use deferential language such as “may” when making recommendations. Here, however, the use of “may want to” (instead of “should,” “must,” or “needs to”) was a factor that contributed to the parents’ loss.

District Secures Approval to Move Student to More Restrictive Placement over Parent Objection

The absence of clear expert support for her position also posed a problem for the parent in Malden Public Schools, BSEA #1409290, #1500006, 20 MSER 262 (Berman, 12/26/14). There the district had the burden of proof, as it had filed for hearing seeking to change the status quo. The district proposed to move the student from a co-taught general education classroom to a substantially separate classroom for students with autism spectrum disorders, located in a different elementary school within the district. The parent sought continuation of an inclusion placement. The hearing officer upheld the district’s proposed IEP and placement.

The district contended that the student, a nine-year-old second-grader, was not making effective progress in his co-taught classroom for reasons inherent in that model (e.g., large class size, fast-paced and linguistically complex instruction, and absence of facilitated social interactions throughout the day). The district asserted that multiple attempts to modify the co-taught setting had been unsuccessful, and that no additional accommodations or modifications could cure the problems with the placement. The parent argued that the proposed substantially separate classroom was inappropriate because it was not language-based, did not address the student’s visual impairment, did not provide an appropriate peer group, and would be overly restrictive. In the parent’s view, any problems with the co-taught setting could be overcome by increasing speech-language and occupational therapies and adding assistive technology and ABA.

The parent presented the testimony of two independent experts, a neuropsychologist and an educational specialist. (It appears that there was no testimony from any expert in vision issues, nor did the hearing officer allude to such issues in her discussion of the merits.) The neuropsychologist recommended moving the student to a partial inclusion model that would utilize pullout special education services and provide him with a multi-sensory language-based approach to instruction, along with additional supports and services. The educational specialist recommended either a regular education setting with additional supports or a language-based classroom. The district contended that its substantially separate classroom was language-based and that the independent experts’ recommendations in fact described the proposed program. The independent educational specialist, after an observation, found that the proposed program was not sufficiently language-based and the peer group was largely inappropriate.

The hearing officer characterized as “overwhelming and largely uncontroverted” the evidence that the student’s “severe difficulties with understanding and using language, together with his distractibility, prevent him from making meaningful progress” in the co-taught classroom. 20 MSER at 269. At hearing, the parent herself admitted that the student was too distracted in that setting. Thus, it was clear that remaining in the co-taught class was not a viable option for the student, and discussion shifted to whether he could make effective progress in a modified inclusion setting, as the independent evaluators suggested. The hearing officer found he would not. She pointed out that “Student already receives extensive modifications, accommodations and supports, and there is no evidence that additional such supports would cure the fundamental weakness of the present placement for Student – class size, and rapid-paced, linguistically complex instruction – or would not further isolate Student within that classroom, e.g., by expanding the role of the [1:1] aide or increasing the amount of pullout service.” Id. at 270. She found that the district’s proposed program, by contrast, “offers all of the elements suggested by witnesses for both Parent and Malden.” Id.

The latter conclusion is curious, in that the hearing officer did not explain why she rejected the independent educational specialist’s testimony that the proposed program lacked at least two important elements (thorough language-based instruction and appropriate peers). One has the sense that, by trying simultaneously to defend the co-taught model, suggest modifications to that model, and suggest alternate inclusion models, the experts’ testimony may have become too diffuse and thus failed to persuade the hearing officer.

As for the parent’s argument that the proposed classroom would be too restrictive, the hearing officer acknowledged IDEA’s requirement of LRE, but stated that “the opportunity to be educated with non-disabled students does not cure a program that otherwise is inappropriate.” 20 MSER at 270. This provides a good reminder not only for parents but also for school districts, some of whom seem never to tire of citing LRE in response to parents’ requests for out-of-district placements, as though LRE were an answer in and of itself instead of just one factor to be weighed. As the hearing officer made clear in Malden, LRE does not exist in a vacuum. Rather, it must always “be balanced with the Student’s entitlement to a program that will provide him with meaningful educational benefit.” Id. Thus, if a student cannot receive an appropriate education in a less restrictive environment, he or she is entitled to placement in a more specialized environment that can meet his or her needs, even if that environment is considered more restrictive because the student will spend less time with typically-developing students.

It is interesting in this context that the hearing officer, by alluding to the greater isolation that could result from increasing the time spent with a 1:1 aide in a co-taught class and increasing pullout instruction, 20 MSER at 270, seemed implicitly to acknowledge that restrictiveness is not necessarily determined by counting the number of nondisabled students in the classroom, and that regular education with a 1:1 aide and pullouts can at times be considered more restrictive than other models. See, e.g., DESE Technical Assistance Advisory SPED 2014-3: “Identifying the Need for Paraprofessional Support” (3/20/14), http://www.doe.mass. edu/sped/advisories/2014-3ta.html. Thus, it seems that the hearing officer denied the relief that the parents sought, not only because LRE does not trump the right to meaningful educational benefit, but also because the proposed regular education model, as a practical matter, may actually have been more isolating, and thus more restrictive, than a coherent program consisting of other students with disabilities. This is the very argument that parents frequently use when seeking placements out-of-district (or reimbursement for such placements). If the party seeking the more specialized placement in this case had been the parent seeking a private program instead of the district seeking a placement in another of its elementary schools, and if the district had been the party proposing to keep the child in a modified inclusion model, one hopes that the result would have been the same.

District’s Procedural Violation Leads to Student’s Transfer from Collaborative Program to Approved Private School

The case of Abington Public Schools, BSEA #1407763, #1502743, 20 MSER 237 (Figueroa, 12/3/14), presents an unusual fact pattern. There, divorced parents who could not agree on the student’s placement each filed a hearing request – each seeking to uphold a different placement, out of two that the district had proposed. The district took no position as to which program the student should attend, asserting that either one (or a third possibility, the public high school) would be appropriate. The hearing officer found that, while either program could meet the student’s needs, the district had committed serious procedural violations in connection with its proposal of the second program (father’s choice), meaning that only the first program (mother’s choice) could stand.

The student was a 15-year-old on the autism spectrum who had attended substantially separate in-district classrooms for the preceding several years. In the middle of his eighth-grade year, his mother rejected the partial inclusion program that the district proposed for him for ninth grade. She requested that he be placed at the League School. At a Team meeting held in January 2014, according to the mother and three district attendees, the Team reached a decision to place the student at League. (The father had planned to attend that meeting but was unable to be present due to car trouble; the meeting proceeded without him. ) Two other district witnesses disagreed that a decision had been made; as the hearing officer noted, however, no placement other than League was discussed. Two district witnesses testified that it was the district’s practice, once a Team had decided that a child should be placed out-of-district, to decide the actual placement location at the administrative level and not as part of the Team process.

Following the meeting, the Team chair e-mailed the father that League had been discussed and that the out-of-district coordinator would be in touch with him about it. The out-of-district coordinator, who had not attended any of the student’s Team meetings, disagreed about League’s appropriateness and instead proposed to refer the student to the South Shore Educational Collaborative (“SSEC”), an option that the Team had not discussed. The mother objected to SSEC but the father agreed to investigate it. (The parents shared educational decisionmaking authority.) In April 2014, at the direction of the out-of-district coordinator and without any further Team meeting, the district issued a placement page specifying SSEC as the student’s placement. The mother rejected the proposed placement; the father accepted it. The student began attending SSEC in May 2014.

The mother filed a hearing request in mid-April 2014, seeking to have the student placed at League. In mid-July, following a prehearing conference, the district issued another placement page, this time specifying that he would attend League beginning in September. The mother accepted this placement, but the student continued to attend SSEC pursuant to a stay-put order issued by the hearing officer. In October, the father filed a hearing request, seeking to have SSEC declared the appropriate placement. (The father was pro se, while the mother was represented by counsel.) The district essentially shrugged its shoulders, characterizing the situation as a “disagreement between battling parents,” 20 MSER at 248, and stating that it was willing to support either placement, as either one could provide the student with FAPE.

The hearing officer appropriately zeroed in on the fact the district was not the innocent bystander it made itself out to be. Not only had Abington “substantially altered the course of this case and exacerbated an already fragile situation between Parents,” 20 MSER at 248, but it had done so illegally. As the hearing officer stated, IDEA and Massachusetts law both make clear that “determinations regarding an eligible student’s individualized program and placement fall solely within the purview of the student’s Team,” and “nothing in the Massachusetts Regulations leaves the determination to a single individual or to school administrators.” Id. The hearing officer found the evidence persuasive that the January 2014 Team meeting had reached a consensus that the student should be placed at League. The out-of-district coordinator’s subsequent choice of SSEC “was made outside the Team process and was therefore, impermissible,” id. at 249, as was the district’s issuance of the April 2014 SSEC placement page without benefit of any further Team meeting.

The district attempted to argue that its procedural violations were de minimis. The hearing officer vigorously disagreed, finding that those violations “seriously hindered Parents’ opportunity to participate in the decision making process regarding the delivery of a FAPE to Student.” Id. Based on this, on Abington’s later issuance of a League placement page, and on a League witness’ description of that program, the hearing officer concluded that League was appropriate for the student and that the mother had met her burden of proof.

As for the father’s case, the hearing officer found that he had shown that the student was receiving FAPE at SSEC. “Nevertheless,” the hearing officer stated, “the SSEC placement was the result of a procedurally tainted process and cannot be allowed to stand.” 20 MSER at 250. In our view, this was the right result. The district, through its administrator, had so undermined the Team process, and so completely deprived the parents of their right to participate in educational decisionmaking with regard to their child, that the only appropriate remedy was the restoration of the status quo ante through the reinstatement of the original (January 2014) Team decision requiring placement at League.

The father raised two arguments against that result, neither of which the hearing officer found persuasive. First, the father argued that the Team could not have decided on League at the January 2014 meeting because he was a necessary Team member and he was not present at that meeting. The hearing officer concluded, however, that “his lack of participation is insufficient to overturn the Team’s determination.” Id. She pointed out that he might have agreed with the League placement at that time. Even if he had not, she stated, he was only one of many Team members, and “his disapproval, if not supported by the [other] Team members, would not have been outcome determinative since he had little information about the League School” at that time and for some time thereafter. (Perhaps more relevant is the fact that he apparently had little information about SSEC, since that suggestion came later from the out-of-district coordinator; thus, the father was unlikely to have requested it during the January 2014 meeting.)

We think that it heads down a dangerous path to excuse the exclusion of any individual on the ground that his or her presence would not have been outcome-determinative. A Team meeting is meant to involve a good-faith exchange of views; it can be difficult if not impossible to assess whether an absent Team member, even if he or she might initially have been the only one advocating for a position, might not have been able to persuade others to his or her view. We think that the hearing officer might more properly have focused on the district’s lack of intent to exclude the father, as the Team meeting was properly convened and only a last-minute problem on his part prevented him from attending; on the father’s apparent failure to ask that the meeting be rescheduled when he notified the Team of his inability to attend; and on his failure to object immediately after learning of the Team decision (or indeed for many months thereafter) to his lack of participation. Perhaps most importantly, the parents shared educational decisionmaking and the mother was present at the meeting and agreed with the proposed League placement. The Team’s agreement on League in the father’s absence thus constitutes a very different situation from the district’s decision on SSEC without any parental participation whatsoever.

The father’s other argument was based on LRE: he contended that SSEC, as a collaborative located in public school buildings, represented a less restrictive placement than League, which is a private school serving only students with disabilities. (The district took this position as well.) Here, even more explicitly than in Malden (discussed supra), the hearing officer took a functional approach to LRE that is refreshing to see. Although SSEC offered the possibility of future inclusion with typically-developing students, the hearing officer found that at present both programs “would educate Student with special education students whether in smaller or larger group settings and in both programs Student would spend the majority of his day in a small group setting composed of mostly boys most of whom have been diagnosed with Autism Spectrum Disorder.” 20 MSER at 250. Thus, the hearing officer found “little difference” between the programs in terms of restrictiveness. Id. Indeed, she hinted that League might even be less restrictive, as it “offers more extra-curricular and community outing opportunities during the school day than SSEC.” Id. We think that this analysis—examining what the student’s actual experience was (at SSEC) or would be (at League) as of the time of the hearing, and according little or no weight to the presence of regular education students in the buildings at SSEC when there was no evidence that the student engaged in any activities with them or that such engagement was planned to occur at any time in the foreseeable future—is correct.

The hearing officer ordered that, “while both Parents have met their burden of persuasion regarding the appropriateness of the League School and the SSEC for Student, Abington’s initial procedural due process violations cannot be ignored and as such Student is entitled to placement at the League School for the remainder of his IEP period and the 2014-2015 school year.” 20 MSER at 250. She encouraged the parties to consider whether it made sense to transfer him halfway through the semester, but made clear that the decision lay “solely in Mother’s hands.” Id.

We are glad to see the hearing officer uphold in such resounding manner the right of parents to participate in any decision regarding their child’s program or placement. As the hearing officer explained, this is a basic tenet of both Massachusetts and federal law. Here, the district violated this right in seemingly cavalier fashion when the out-of-district coordinator (apparently following an express yet illegal policy of the district) had the temerity to overrule a decision reached by the Team. The district’s usurpation of the parents’ rights and the Team’s prerogative appears to have caused substantial confusion, ill feeling, and expense for the parents, not to mention educational consequences for the student, who will now have to endure an additional transition that would not have been necessary had he been placed at League in the first instance as the Team intended. The relief ordered by the hearing officer cannot and does not compensate the parents and student for all that they have been through. At least, however, it puts matters back on the right track, and restores the parents and student to the position where they should have been many months before.

DMH Required to Remain a Party and Comply with Stay-Put in Quincy; DMH Dismissed from Proceedings in Andover

Three rulings this quarter concern the responsibilities of the Department of Mental Health (“DMH”) to special education students, both in terms of DMH’s participation in BSEA proceedings and in terms of DMH’s obligations pursuant to state and federal special education law. Two of those rulings occurred in the same case, Quincy Public Schools and the Department of Mental Health, BSEA #1502243, 20 MSER 203 (Byrne, 10/8/14) and 20 MSER 229 (Byrne, 11/13/14). That case concerned a 14-year-old girl, “Rosalee,” a Quincy resident who had been a DMH client for approximately five years. Pursuant to Quincy’s IEP, Rosalee began attending Granite Academy, an approved special education school in Braintree, in June 2013. At the same time, DMH placed Rosalee residentially at Granite House, a long-term group home in Quincy. On July 15, 2014, DMH precipitously discharged Rosalee from Granite House and moved her first to a short-term program in Plymouth (“Plymouth STARR”) and then, on August 14, 2014, to the Community Intervention Program (“CIP”), a short-term evaluation and bridge program in Arlington. A student’s continued stay at CIP is generally approved on a week-to-week basis, particularly after the student has spent 30 days in the program. Rosalee was still at CIP on September 16, 2014, when the parents filed a hearing request against both Quincy and DMH and a motion for a stay-put order against DMH.

In their hearing request, the parents sought a determination that Rosalee required an integrated, coordinated, therapeutic residential special education program in order to receive a FAPE. Both in their hearing request and in their stay-put motion, the parents sought an order requiring DMH to maintain Rosalee in a residential setting comparable to Granite House for the duration of the proceedings.

The hearing officer’s first ruling, 20 MSER 203, concerned DMH’s motion to dismiss. The agency asserted that the case should be dismissed for two reasons. First, DMH argued that the BSEA could not order DMH to maintain Rosalee at a particular type of placement because Rosalee’s residential services through DMH did not implicate her special education rights. Second, DMH argued that the parents’ issues with the appropriateness of Rosalee’s residential placement were more properly addressed through DMH’s fair hearing process than through the BSEA. The hearing officer declined to dismiss either the case in general or DMH as a party, as she found that the parents had presented facts and claims implicating the responsibilities of both Quincy and DMH that were sufficient to survive a motion to dismiss. Although the hearing officer noted that DMH’s internal dispute resolution process would have provided an appropriate forum for some of the parents’ claims, the hearing officer declined to dismiss the case based on the availability of the fair hearing process. As the hearing officer stated, “[N]othing in the IDEA or MGL c. 71B requires a Parent to pursue or to exhaust a fair hearing process exclusive to another administrative agency responsible for providing services to an IDEA eligible individual when that individual has cognizable claims moving through the IDEA’s dispute resolution process.” 20 MSER at 204. The hearing officer pointed out that the BSEA is the state agency charged with “ensuring necessary inter-agency coordination when the special education rights of an IDEA eligible student are in controversy,” and that there is no legal requirement for resort to another agency’s forum before the BSEA can fairly and completely determine a student’s needs. Id.

The hearing officer’s second ruling in Quincy, 20 MSER 229, concerned the Parents’ motion for stay-put against DMH. As the hearing officer noted, it is well settled that stay-put applies to placements made by public school districts; the question in this instance was whether stay-put applies to placements made by another state agency that is providing services to an IDEA-eligible individual. Both parties acknowledged that the BSEA has the authority to order a state agency to provide “additional services” that are required to allow a special education student to receive a FAPE or that are implicated in the student’s IEP. See 603 CMR 28.08(3).

In this case, the parents argued that Granite House (a long-term therapeutic residential placement, where Rosalee was living when the dispute arose) provided essential services that allowed Rosalee to access her education at Granite Academy, and that CIP (a short-term residential therapeutic placement where Rosalee was at the time of the ruling) did not provide comparable services, in violation of Rosalee’s stay-put rights. The parents asserted that, to honor Rosalee’s stay-put rights, DMH should be required to arrange residential services that were substantially similar to those it provided at Granite House, pending the resolution of the special education dispute with Quincy. DMH argued that, as a provider of mental health services and not special education services, it was not subject to the procedural protections of IDEA, including stay-put. DMH did, however, represent to the BSEA that it would maintain Rosalee in a therapeutic, group, out-of-home placement pending final resolution of the BSEA case.

Instead of holding DMH subject to IDEA’s stay-put requirement because residential services were necessary to ensure Rosalee’s access to her education at Granite Academy, the hearing officer took what she viewed as a “middle ground,” 20 MSER at 230, holding DMH subject to IDEA’s stay-put requirement based on the agency’s own promise to maintain Rosalee in a residential placement pending resolution of the dispute. The hearing officer declined to specify the characteristics of the out-of-home placement because she found no evidence that the particular location or service level of Rosalee’s residence had affected her ability to receive a FAPE at Granite Academy. The hearing officer ordered DMH only to “maintain Rosalee in a group residence appropriate to her clinical needs until final resolution of this special education appeal or until otherwise directed by the BSEA.” Id. at 231.

At the conclusion of her ruling, the hearing officer observed that the state and federal stay-put requirements “apply generally to public agencies providing ‘additional services’ that permit a student to access a special education program arranged by the responsible school district.” 20 MSER at 231. This principle provides a hopeful new avenue for parents who are facing agency termination of services that are necessary to allow their child access to his or her program of special education. It remains to be seen, however, whether the BSEA will hold agencies responsible when an agency does not essentially subject itself to stay-put, as DMH did in this case.

The third ruling this quarter involving DMH came in Andover Public Schools and Massachusetts Department of Mental Health, BSEA #1502640, 20 MSER 212 (Reichbach, 10/10/14). The student in that case, “Alistair,” had been diagnosed with Asperger’s Syndrome, mood disorder, anxiety disorder, an emerging thought disorder/schizoaffective disorder, a disorder of written expression, and dyscalculia. After Alistair had attended a residential placement for approximately five years, Andover and the parents agreed to move him to a day program. As a day student, Alistair was hospitalized several times for suicidal ideation, self-harming behavior, and suicide attempts.

Alistair’s parents applied for DMH services but DMH found that Alistair’s primary impairment was the result of a traumatic brain injury, which disqualified him from DMH services pursuant to the agency’s regulations. The parents did not appeal DMH’s denial of services in a timely manner.

Approximately nine months after DMH had rejected Alistair’s application for services, the parents filed an expedited hearing request at the BSEA against both Andover and DMH, seeking an order for residential placement. On the same day that DMH filed its motion to dismiss, the parents submitted a second application for DMH services, based on Alistair’s mental health deterioration during the previous nine months and on a recent diagnosis of bipolar disorder.

DMH argued that it should be dismissed as a party because (1) Alistair did not meet clinical criteria for DMH services, for the reasons stated in the rejection of his previous application; (2) there was no showing that DMH was a necessary party or that it had any interest in the BSEA proceedings; and (3) there was no showing that Alistair needed services in addition to those to be provided by the district. Andover and the parents jointly opposed DMH’s motion. The parents argued that Alistair would likely be found eligible for DMH services on his reapplication, both because of the recent deterioration in his mental health status and because DMH had been sending a case manager to Alistair’s IEP meetings, implying that it would provide services to him.

The hearing officer looked to the BSEA’s rule on joinder to resolve the question of whether DMH should remain a party to the case. BSEA Hearing Rule I(J) provides that joinder is appropriate when complete relief cannot be granted among existing parties or when the party being joined has an interest in the case such that the case cannot be disposed of in the party’s absence. The hearing officer also noted that the BSEA could order DMH to provide services only “in accordance with the rules, regulations and policies” of DMH itself, GL ch. 71B, § 3, and that an agency’s interpretation of its own regulations is generally given deference.

Ultimately, the hearing officer granted DMH’s motion to dismiss. The hearing officer reasoned that it would be a violation of MGL c. 71B, § 3 for the BSEA to order DMH to provide Alistair with services after DMH had determined that Alistair did not qualify for services under the agency’s regulations. Because the hearing officer could not order DMH to provide services, then DMH’s presence was not required to grant complete relief and the case could be decided in the agency’s absence. The hearing officer closed by stating that if DMH found Alistair eligible for services after considering his reapplication, the parents or Andover would be free to file a motion to join DMH.

In many circumstances, parties to a case such as this would agree to take the case off of the expedited track in order to obtain DMH’s eligibility decision before proceeding to hearing. Here, it appears that the parents were unwilling to wait for DMH to make an eligibility determination before they proceeded against Andover, which is understandable considering the apparent seriousness of Alistair’s needs. In our experience, having DMH as a party in any given case can be beneficial, but can also encourage a school district, which would be responsible for providing a residential placement if twenty-four-hour services are necessary for a student to receive a FAPE, to rely instead on the possibility that DMH will agree to share the cost of that placement and thus induce the district to delay proposing an appropriate placement itself.

DMH’s agreement to share the cost of a residential placement with the school district can and often does circumvent a time-consuming and costly hearing process. On one level, if a child who needs a residential placement is in a residential placement at no cost to the parents, then the child’s needs are being met and the parents should have no concern. On another level, however, DMH’s agreement to share the cost of a residential placement with a student’s school district can lead to significant complications. For example, if a school district writes an IEP for a residential placement, the parents can assert their stay-put rights if the district attempts to change a student’s placement. However, if the district is funding a day placement and DMH is funding the residential component of a student’s programming, and DMH decides that it will no longer fund residential services, the parents may face a costly and uphill battle against both the district and DMH to ensure continuation of residential services. Thus, parents must balance the cost, risk, and time that it will take to hold a district responsible for 100% of a residential placement against the risks inherent in seeking to hold DMH responsible to fund such a placement.

Although the hearing officer’s holding in Quincy that DMH can be subject to stay-put is heartening, parents cannot and should not assume that every hearing officer can or will force DMH to maintain a particular level of service delivery or even to respond in a clinically appropriate manner to a child’s status. As the discussion in Andover implies, DMH follows a well-used formula to obtain dismissals from BSEA proceedings, to create an image of itself as an agency far-removed from the requirements of special education law, and to ensure that it is not required to provide services even to those DMH clients (or potential clients, like Alistair) who desperately need them.

Complying with the Exhaustion Requirement in Non-IDEA Tort Cases

In both Georgetown Public Schools, BSEA #1405352, 20 MSER 200 (Berman, 10/8/14), and Winthrop Public Schools, BSEA #1502412 & 1502413, 20 MSER 232 (Reichbach, 11/24/14), parents asserted tort and civil rights claims based on alleged abuse and neglect of their special education children by special education teachers in the district. In both cases, the parents filed hearing requests at the BSEA seeking only money damages and making no claims pursuant to state or federal special education law. In each case, the district filed a motion to dismiss arguing that the BSEA did not have jurisdiction over the dispute or the power to award the money damages that the parents sought, and the hearing officer granted that motion.

It is well established that the BSEA is authorized to decide only those cases brought pursuant to special education law and does not have the ability to award money damages. The First Circuit has mandated, however, that parties “exhaust all available avenues of administrative review regardless of whether the administrative process offers the particular type of relief that is being sought” before they can file in federal court. Frazier v. Fairhaven Sch. Comm., 276 F.3d 52, 62 (1st Cir. 2002). As the First Circuit stated, “plaintiffs who bring an IDEA-based claim . . . in which they seek only money damages, must exhaust the administrative process available under the IDEA.” Id. at 64. Therefore, whether the BSEA must hold an administrative hearing, develop a factual record, and issue a decision in order for the plaintiffs to be able to proceed to court depends on whether the plaintiff’s claims are “IDEA-based.” See id.

Recent BSEA decisions regarding similar cases, in which parents have not alleged violations of special education law and seek only money damages, have all indicated that the claims were not “IDEA-based” and that fact-finding at the BSEA was therefore not required. See, e.g., In Re: Xylia, BSEA #120781, 18 MSER 373 (Byrne, 11/26/12). Courts in other jurisdictions, such as the Sixth Circuit, have held that parents are not required to exhaust abuse claims related to non-educational injuries. Furthermore, both the Sixth Circuit and the BSEA have suggested that imposing an administrative fact-finding process on students with disabilities (and not on students without disabilities, who can file their claims directly in federal or state court without first proceeding through an administrative process) may create an impermissible barrier to accessing the courts, in violation of the Americans with Disabilities Act.

We agree with the BSEA and the Sixth Circuit that filing at the BSEA before proceeding to court should not be required in cases like Georgetown and Winthrop. As the hearing officer aptly observed in Winthrop, “The fact that [students] are both eligible for, and receiving, special education and related services, does not automatically transform the claims they are making into ‘IDEA-based’ claims.” 20 MSER at 234. Until the First Circuit speaks further on this issue, however, parents who plan to seek money damages from a school district for claims that bear any relationship, no matter how tangential, to a student’s special education program risk dismissal from federal court pursuant to Frazier if they do not first proceed to the BSEA and obtain either a hearing decision or an order of dismissal. Although this may seem to be an empty exercise, requiring considerable effort by the parties and hearing officers to no real purpose, current First Circuit jurisprudence requires that parents undertake it.

District Required to Expunge Student’s Expulsion Due to Lack of Manifestation Review, but Not to Provide Special Education Services

In a similar manner to Abington (discussed above), the hearing officer in King Philip Regional School District, BSEA #1504287, 20 MSER 271 (Reichbach, 12/31/14), invalidated a district action taken in violation of law. Here, the action was expulsion of the student pursuant to MGL c. 71, § 37H½, for his receipt of a suspended sentence on a felony charge, and the procedural vehicle was a motion for summary judgment.

The student in King Philip was charged with a delinquency felony in the fall of 2012 for an incident that had occurred in September 2012, when he was a special education student attending a public day school. He was subsequently placed in an approved private special education program. In May 2013, he received a suspended sentence with probation on the felony charge. Several months later, he was committed to the Department of Youth Services (“DYS”) for violation of conditions of his probation. He attended an intensive residential treatment program for an unspecified period.

In October 2014 (by which point it appears that he was over the age of 18 and making his own educational decisions), the student withdrew from school (presumably the district’s high school), withdrew from special education, and revoked his consent to special education services. In November 2014, his attorney informed the district that the student wished to retract both his withdrawal from school and his withdrawal of consent for special education. In December 2014, the district served him with a notice of expulsion pursuant to MGL c. 71, § 37H½, based on his felony conviction. No manifestation determination was held pursuant to 20 USC § 1415(k)(1)(e).

In his hearing request, the student asserted that the expulsion could not stand because the district had failed to conduct a manifestation review. He also argued that he remained eligible for special education and was entitled to be placed immediately in an appropriate program. The parties filed cross-motions for summary judgment. They agreed, and the hearing officer found, that there were no material facts in dispute. The hearing officer thus granted summary judgment, ruling in the student’s favor on the first issue (failure to conduct a manifestation review) and in the district’s favor on the second (current eligibility for special education).

On the expulsion issue, the district argued that the student was not entitled to any of the protections of the special education laws, including a manifestation review, because he was not a special education student at the time of his expulsion, having previously revoked his assent to special education. The hearing officer agreed that he was not a special education student at the time of his expulsion, but correctly stated that the relevant time period for determination of his status was not the time of his expulsion (2014), but the time of his offense (2012). As the hearing officer stated, “It is the time during which the behavior for which the child is being disciplined occurred, not the time during which the disciplinary action was administered, that is relevant” for the purposes of determining the student’s rights. 20 MSER at 274 (citing 20 USC § 1415(k)(5)(A), 34 C.F.R. §§ 300.9(c)(2), 300.534). Holding otherwise, she explained, could result in a student’s being disciplined for behavior that was a manifestation of his disability, which is the very thing that Congress, by requiring a manifestation review, intended to prevent.

Because the student was expelled without the manifestation review to which he was entitled, the hearing officer found that the expulsion could not stand. She ordered the district to return the student to school immediately and expunge the expulsion from his record.

In our view, the hearing officer reached the correct conclusion. IDEA’s disciplinary provisions apply to “a child with a disability who violates a code of student conduct.” 20 USC § 1415(k) (1)(A), (B). A “child with a disability” is one who satisfies the statutory criteria of eligibility for special education. Id. §§ 1401(3)(A), 1414. The use of the present tense (“violates”) indicates that the misconduct in question is behavior that occurred while the student was a special education student (or, in certain circumstances not relevant to this case, was deemed to satisfy eligibility criteria). If the district seeks to change the placement of such a child for more than 10 school days (and if, as in this case, the special circumstances in 20 USC § 1415(k)(1)(G) do not apply), then a manifestation determination must take place. Id. § 1415(k)(1)(E)(i). The manifestation determination focuses on the child’s misconduct and the circumstances surrounding it as of the time it occurred: the Team must determine whether “the conduct in question was caused by, or had a direct and substantial relationship to, the child’s disability,” or “if the conduct in question was the direct result of the [district’s] failure to implement the IEP.” Id. § 1415(k)(1)(E)(i). As the hearing officer pointed out, 34 C.F.R. § 300.9(c)(2) explicitly provides that “[i]f a parent revokes consent, that revocation is not retroactive (i.e., it does not negate an action that has occurred after the consent was given and before the consent was revoked).” Thus, the revocation of consent that occurred well after the misconduct in this case has no effect on the existence of IDEA safeguards for the student when he committed the misconduct, or on the district’s obligation to apply those safeguards before disciplining him for such conduct.

As for the second issue, concerning the student’s right to FAPE, the hearing officer held that the student was not currently entitled to receive special education. Once he revoked his assent to special education in October 2014, she stated, he became a general education student, entitled only to placement in general education classes at the district’s high school, unless and until the district finds him eligible again for special education. The hearing officer reminded the district of its “child find” obligations and its obligations to respond in a timely manner to any request for evaluations that the student might make.

On this issue, we think it is less clear that the law compelled the result that the hearing officer reached. The state and federal regulations discuss consent and the revocation of consent, but provide little guidance with regard to the revocation of a revocation, as occurred in this case. One could argue that the hearing officer’s reasoning was formalistic, and that when the student withdrew his revocation of consent to special education, the situation should have reverted to the status quo, requiring his reinstatement as a special education student. Obviously, there could be practical problems in allowing parents, perhaps years after withdrawing their consent, to demand instant reinstatement of their children in special education by withdrawing their previous revocation. In this case, however, where the student was apparently acting on his own and realized less than three weeks later that he did not actually wish to revoke his assent to special education, it would seem that the district would not have been prejudiced by an order requiring the district to reinstate him as a special education student. Perhaps a rule of reason might be that if a parent or student has revoked consent to special education services, but withdraws that revocation within three years following the district’s last evaluation of the student (so that no new evaluation would be required pursuant to 20 USC § 1414(a)(2)(B)(ii) and 603 CMR 28.04(3)), the district should be required to return the student immediately to special education.

One question that King Philip appears to leave open is whether the district may reissue an expulsion notice based on the student’s 2012 misconduct and 2013 conviction, as long as it follows the manifestation process correctly the second time around. The hearing officer seems to have alluded to this possibility, stating that the district must conduct a manifestation review in the event that it “elect[s] to take further disciplinary measures constituting a change in placement based on any behavior that occurred while [the student] was enrolled in [the district] as an identified child with a disability.” 20 MSER at 274 (emphasis added). We think that this type of “double jeopardy”—attempting to expel the student twice for the same offense—would be fundamentally unfair, and that the district should be required to live with the consequences caused by its own violation of the student’s rights.

Statute of Limitations in Cases Involving IDEA and Section 504

The student in Masconomet Regional School District, BSEA #1408394, 20 MSER 215 (Byrne, 10/10/14), filed a hearing request alleging that the district violated “child find” and other obligations to her under both IDEA and Section 504. The district moved to dismiss the student’s claims on statute of limitations and jurisdictional grounds. The hearing officer denied the motion, finding that the student had “stepped over the ‘low bar’ as required to defeat a Motion to Dismiss” by alleging sufficient plausible facts on all of her claims that, if proven, would entitle her to “some form of relief the BSEA is authorized to award.” Id. at 217.

The ruling is interesting because the hearing officer flagged two statute of limitations issues for possible future decision once the parties had fully developed the relevant facts. One issue was “whether it remains reasonable for the BSEA to impose a three year statute of limitations, a term borrowed from the Massachusetts personal injury statute, on Section 504 claims, while subjecting IDEA claims based on and arising out of identical facts to a two year statute of limitations.” 20 MSER at 217. Another was “the scope of the ‘continuing violations’ doctrine in the context of mixed IDEA/Section 504 appeals.” Id. Anyone who has a case or potential case involving either of these questions will want to keep a close eye on the progress of Masconomet.

Unsuccessful Challenge to DESE Assignment of Responsibility Provides Useful Reminders Regarding Students with Parents in Different Districts

In Amesbury Public Schools, BSEA #1406933, 20 MSER 218 (Byrne, 10/17/14), Amesbury challenged the DESE’s assignment to it of sole fiscal and programmatic responsibility for a special education student. The student’s parents were divorced. Her mother lived in Amesbury and her father in Bedford; she attended a collaborative program in Methuen. Amesbury contended that Bedford should share responsibility for the student’s education pursuant to 603 CMR 28.10(2)(a)(2), which requires two districts to share the costs of a student’s out-of-district placement when the student “lives with both of his or her parents” in those districts during the school year. Bedford and DESE opposed Amesbury’s motion for summary judgment. Neither parent appeared in the case or took any position on the matter. The hearing officer denied Amesbury’s motion for summary judgment and confirmed the DESE’s assignment of responsibility.

As the hearing officer stated, 603 CMR 28.10(2)(a)(2) only comes into play if the student in fact lives in two different districts; otherwise, 603 CMR 28.10(2)(a), which places sole responsibility on the district where the student resides with his or her parent or guardian, will govern. Here, the hearing officer found that Amesbury had failed to present any evidence, either to the DESE or to the BSEA, to show that the student lived with her father in Bedford. Amesbury relied entirely on an “undated, unsigned, uncertified document resembling a portion of a probate court parenting plan provid[ing] that the father will have parent time with [the student] on alternate weekends.” 20 MSER at 218. This document was not enough. Even if the document had been reliable and current, which the hearing officer stated it was not, “the document by itself is insufficient to prove residence.” Id. at 219. As the hearing officer emphasized, the courts instead require a “highly individualized and fact dependent” analysis, taking into account “factors such as where the child sleeps, gets ready for school, does homework, participates in community activities, attends family, religious, cultural and civic events, etc.” Id. (citing George H. & Irene L. Walker Home for Children v. Franklin, 416 Mass. 291 (1993)). Because Amesbury had failed to engage in that analysis and failed to present any facts relevant thereto, the hearing officer upheld the DESE’s assignment of responsibility, concluding that the student lived only with her mother in Amesbury and that Amesbury was therefore programmatically and fiscally responsible for the student’s out-of-district program.

At times, as in this case, the question of district responsibility is a matter of dispute only between the districts involved. The issue can be relevant for parents and their attorneys and advocates as well, however. For instance, if a child spends time with both parents in two different districts while attending public school in one, and the parents then decide to place the student unilaterally in a private program, the facts should be explored carefully to see whether there is a basis for a reimbursement claim against both districts. If so, both districts should receive notice of the placement, and ordinarily parents will want to name both in a hearing request. (Even if the parents do not do so, the district named in the hearing request may seek to have the second added as a party.) Knowing whether and whom to name requires knowledge and performance of the multifaceted factual analysis to which the hearing officer alluded in Amesbury.

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