Overview

Commentary on Massachusetts Special Education Decisions: 2nd Quarter, 2010, by Daniel T.S. Heffernan:

April 03, 2010

Introduction

Within the second quarter’s BSEA decisions are a wide range of rulings reiterating well-established principles of Massachusetts special-education law. The rulings in Dennis-Yarmouth, Foxborough, Somerset and Fall River and DESE, and Framingham and Natick and DESE demonstrate that while the BSEA has broad jurisdiction and its rulings have far-ranging impact, its authority and power are constrained. There is a clear limit to what relief Hearing Officers can order, what entities they may exert authority over, and what disputes they can resolve. The decisions in Maynard, Lexington and Minuteman, and others also reiterate the care with which the BSEA examines the claims not only of pro se Parents, but also of Parents who do not even participate in the BSEA hearing. Last, the filings of hearing requests subsequent to previous BSEA decisions dispels the notion that pursuing a matter all the way through a BSEA hearing will settle a matter once and for all. In reality, as demonstrated in Dracut and Foxborough, litigation can beget further litigation.

We also comment on two pieces of potentially significant state legislation, the Massachusetts Anti-Bullying Law and the realignment of the BSEA from the Department of Elementary and Secondary Education (“DESE”) to the Division of Administrative Law Appeals (“DALA”).

Parameters of the BSEA’s authority

We often speak about the broad power of the BSEA because of its jurisdiction over any dispute arising out of the provision of special-education services in Massachusetts. Even certain tort and civil-rights claims for damages must first go through the BSEA under the legal principle of “exhaustion” of administrative remedies, despite the BSEA’s inability to award monetary damages. While Hearing Officers’ decisions significantly impact school districts as well as students and their families, several cases remind us that the BSEA is an agency of limited authority.

In Dennis-Yarmouth Regional School District, BSEA #10-4763, 16 MSER 204 (2010), the school district sought to join two state agencies, the Department of Developmental Services (“DDS”) and the Department of Children and Families (“DCF”). The Student in question was non-ambulatory and had significant disabilities, including a progressive neurological disease, seizure disorder, and chronic respiratory failure. In addition, he had a history of aggression and violence. After residing in a series of hospitals and nursing homes, the Student was placed residentially at Franciscan Children’s Hospital (“Franciscan”). At the time of the hearing on the motion to join DCF and DDS, there was no dispute that Franciscan was no longer an appropriate placement, that the Student could not live alone safely, and that he could not live with his adoptive Parents. Dennis-Yarmouth refused to provide a residential placement. Therefore, the Student was “stuck” in an inappropriate and possibly harmful placement. The Student’s guardian had filed the hearing request seeking a determination that Dennis-Yarmouth was responsible for providing residential services. Dennis-Yarmouth took the position that any need for residential services arose not out of the Student’s educational needs, but from his medical needs and his need for housing. Dennis-Yarmouth moved to join DDS and DCF, a motion the guardian supported.

The statute addressing the jurisdiction of a BSEA Hearing Officer over state agencies such as DCF and DDS, MGL c.71B, §3, empowers Hearing Officers to join such agencies if services from those agencies may be necessary to provide “complete relief” to the Student. Joinder is appropriate in situations where the Student will be able to access or benefit from the school district’s special-education program only if services over and above those that are the responsibility of the school district need be provided by the human-services agency. However, the BSEA may act only in accordance with that human-services agency’s rules, regulations, and policies. Concerning DDS, the 20-year-old Student was eligible for and already receiving some services from DDS. DDS argued that its own regulations state that DDS does not provide residential services to 18-to-22-year-olds if the individual is eligible for residential services from a school district; 115 CMR 6.07(2)(b). However, the Hearing Officer reasoned that if he ultimately found that Dennis-Yarmouth was not responsible for residential services, nothing in DDS’s own regulations would bar the Hearing Officer from ordering DDS to provide them. In contrast, the Hearing Officer found it highly unlikely that DCF could be required to provide residential services even if Dennis-Yarmouth were found not responsible for residential placement. The Student was not under the care or custody of DCF and was not an active client. And given that the Student was already 20 years old, it was unlikely that he would become a client in the future. Therefore, the Hearing Officer allowed the joinder of DDS, but not DCF.

The Hearing Officer in Foxborough Public Schools, BSEA #10-6287, 16 MSER 214 (2010), felt free to determine the stay-put rights emanating from a prior BSEA decision but not to interpret or enforce a Resolution Agreement. The parties had a long history of conflict that at one point led to a 2006 BSEA hearing and decision. One component of that decision was that the Student be provided special-education summer programming. Over the course of the subsequent years and various school districts following the family’s relocations, numerous IEPs were proposed and partially rejected. In May 2009, the Parent filed a hearing request. Shortly after that filing, and pursuant to the requirement of IDEA 2004, the Parent and Westwood had a Resolution Meeting. The resulting Resolution Agreement addressed summer 2009 services and contained a waiver of stay put. More IEPs and partial rejections ensued. In the instant matter, Foxborough asserted that the Student was not entitled to stay-put for summer services because the Parent had waived stay-put claims in the 2009 Resolution Agreement. The Hearing Officer held that the Parent had consistently maintained that she was invoking stay-put rights for the summer services ordered in 2006 by the BSEA, and that she had never agreed to a different level of services in intervening IEPs. Therefore, the Student was entitled to stay-put rights for summer services. Foxborough countered that the summer services delineated in the Resolution Agreement became the new “last agreed upon summer services” and this, coupled with the waiver of stay-put rights in the Resolution Agreement, barred the Parent from continuing to invoke stay-put rights based upon the 2006 decision.

The Hearing Officer noted that IDEA specifically allocated responsibility for the interpretation and enforcement of Resolution Agreements to either state or federal courts or the state educational authority (SEA) or SEA designee. Since neither the Massachusetts DESE nor the Legislature had empowered the BSEA to interpret or enforce Resolution Agreements, the Hearing Officer could not enforce or interpret that agreement. The decision is illustrative of the restraint shown by Hearing Officers in exerting their authority. It is also unfortunate, as the BSEA is the logical forum for resolving such disputes and the most accessible to families.

The Hearing Officer felt similarly constrained in Somerset Public Schools and Fall River Public Schools and DESE, BSEA #10-5775, 16 MSER 199 (2010). There, Somerset sought to challenge the DESE’s assignment of school-district programmatic and fiscal responsibility for a Student. DCF had temporary custody of the Student and had placed her in a temporary foster home. DCF claimed homeless status for the Student pursuant to the federal McKinney-Vento Homeless Education Act, 42 USC §11431, et seq. Pursuant to this federal law, homeless students have the right to attend either the school they attended before becoming homeless or a school within the district in which they are temporarily living. The law also establishes a dispute-resolution mechanism for a challenge by a school district of the enrollment rights of a purportedly homeless student. This challenge involved an appeal to the DESE Commissioner. The Commissioner’s written decision is final. Therefore, the Hearing Officer ruled that she had no authority to “second guess” or undo such a DESE determination.

The Student in Dracut Public Schools, BSEA #08-5330c, 16 MSER 203 (2010), sought an order from the BSEA for a referral to the DESE for enforcement of certain portions of the decision in the earlier Dracut Public Schools, 15 MSER 78 (2009). Massachusetts regulations (603 CMR 28.08(6)(b)) and BSEA rules (BSEA Hearing Rule XV) provide that a Hearing Officer, upon finding noncompliance, may refer the matter to the DESE Legal Office. This Student alleged that Dracut failed to comply with certain parts of the earlier ruling, including failing to provide certain transition services or have the ordered consultation with identified consultants. The Hearing Officer found that he had authority to refer to the DESE Legal Office for enforcement only after making a determination of noncompliance. Therefore, the Hearing Officer refused to make the referral at that time.

In contrast, the Hearing Officer in Framingham Public Schools and DESE and Natick Public Schools, BSEA #10-4756, 16 MSER 195 (2010), resolved a dispute about whether DESE’s assignment of fiscal responsibility between the two school districts was proper. At the crux of the issue was the date on which the family actually moved from Framingham to Natick. Specifically, the dispute was over whether the family had moved to Natick on or before the “magic date” of April 1, 2009. If it was on April 1, 2009, Framingham would be responsible under the Massachusetts “move-in law” (MGL c.71B, §5) for the cost of Student’s private placement through June 30, 2010. DESE assigned fiscal responsibility to Framingham when it determined that the family moved into Natick on April 1, 2009. The Hearing Officer noted that 603 CMR 28.10 specifically authorizes the BSEA to decide appeals of such DESE determinations. The Hearing Officer relied on such evidence as the lease, which commenced on April 1, 2009, to affirm the DESE ruling.

Undue deference to the school district?

The dispute in Xenon Public Schools, BSEA #09-7928, 16 MSER 178 (2010), was essentially over the appropriate reading methodology for this Student. The school district recommended a highly structured, sequential, rules-based methodology such as the Wilson Reading Program. The Parents advocated for an alternate reading program, Reading Recovery. The 10-year-old Student was diagnosed with a communication disorder and a specific learning disability in the area of reading. The dispute between the school district and the Parents implicated two areas where school districts have traditionally been given extensive latitude and deference—the selection of teaching methodology and of service providers. After disagreements and a confrontation between Parents and the teacher who was providing specialized reading instruction, the Parents withdrew their consent to have that teacher instruct the Student, and objected to the failure to employ Reading Recovery. Further, they sought reimbursement for Reading Recovery tutoring.

Although the Hearing Officer stated that the choices of methodologies and personnel are within the school district’s purview, the fact that the Hearing Officer did not simply leave it at that demonstrates that Parents have a right to argue a case for a particular methodology. We have seen Parents prevail in their insistence, for example, that Applied Behavior Analysis (“ABA”) therapy be provided to children with autism-spectrum disorders. Similarly, when a family can establish the necessity of certain qualifications or experience of a service provider, they may successfully challenge the school district’s personnel assignment. In the instant case, however, several factors doomed the Parents’ challenge. The Parents’ expert, while an experienced reading instructor, was not certified in rules-based methodologies such as Wilson and Orton-Gillingham and therefore was unqualified to attack the appropriateness of those programs. She also acknowledged the meaningful progress Student made with a rules-based reading program and that Reading Recovery was not necessarily appropriate for the Student going forward. Regarding personnel, the educator to whom the Parents had objected was highly qualified and experienced, and there was scant appreciable or credible evidence that she was anything but appropriate and effective.

Therefore, while the door to the BSEA is open to a challenge to a district’s methodologies or staffing, the evidence about the inappropriateness of either must be backed up by qualified experts and objective evidence.

We say it again: experts are key

The pro se Parent in Salem Public Schools, BSEA #10-6335, 16 MSER 143 (2010), sought a different school and paraprofessional to work with her daughter. The Student was a 13-year-old with autism-spectrum disorder, which impacted her ability to maintain focus and pick up social cues. Social pragmatics was a crucial aspect of the Student’s program. Pursuant to a CHINS action in juvenile court, a guardian ad litem had been appointed for the Student. At hearing, Salem had various experts and service providers testify to the appropriateness of their program for Student and the appropriateness and qualifications of the paraprofessional working with Student. By contrast, the Parent’s entire case rested on inconsistent reports by the Student about being bullied and mistreated in school. No experts testified for the Parent and even the guardian ad litem supported Salem’s case. We are mindful of the difficulty in procuring qualified experts to evaluate and testify. However, it is a rare case that is successful without such expert support. One resource for such experts is the treating professionals working with the Student, who often have high credibility since their involvement with the Student often predates any litigation between the parties and thereby undercuts any claim that they are “hired guns.” In the instant matter, the Mother testified that the Student received help from Girls, Inc., a social-service agency. There was no further information about what role Girls, Inc. played in Student’s life or whether testimony from them would have assisted Parent’s case. However, such potentially fertile ground should be explored for supporting expert opinions.

A pro se friendly forum

While families not represented by attorneys rarely prevail in hearings at the BSEA, the Hearing Officers deserve recognition for their efforts, extraordinary at times, to give a full and fair hearing to pro se litigants. Respect for pro se litigants is evident in two particular cases this quarter.

In most legal proceedings, one side will automatically prevail if the other side fails to put on a case. Despite the fact that Parents declined to participate or even attend the hearing, the Hearing Officer in Maynard Public Schools, BSEA #10-6645, 16 MSER 206 (2010), nonetheless thoroughly analyzed and considered their position before rendering her decision. The Student had a complex medical history as well as a history of significant time living in homeless shelters and foster homes. The Parents repeatedly changed their position on the proposed IEP and behavior-support plan. They rejected services, accepted services, withdrew and re-enrolled Student in special education and, while initially consenting to the Student’s three-year evaluation, subsequently withdrew that consent. Maynard filed a hearing request seeking a determination that its proposed IEP provided FAPE and seeking substitute consent for the three-year evaluation.

The Hearing Officer analyzed the evidence presented in the form of testimony from a variety of well-qualified school personnel, school records, and the independent evaluations from a team at Children’s Hospital. She found that the overwhelming and undisputed evidence demonstrated that Student had benefitted from the program that Maynard proposed he continue in, and therefore the proposed IEP provided FAPE. Concerning the attempt to override Parents’ refusal of the three-year evaluation, the Hearing Officer applied the relevant Massachusetts and federal regulations (603 CMR 28.04 and 34 CFR 300.300) regarding evaluations and consent. While the law is clear that a school district is required to conduct re-evaluations every three years, that time period had not yet elapsed since Student had undergone some of the requested evaluations. Therefore, the school district’s action could not rest solely upon its obligation to conduct three-year evaluations.

The school district had to justify its request for the evaluations on regulations allowing sooner evaluations when necessary. Because the Student had significant disruptions to his program due to Parents’ alternating acceptance and refusal of some or all of his services, the Hearing Officer found that certain specific evaluations were necessary. For example, while the Student had had a physical-therapy evaluation within three years and received physical therapy until March 2009, when the Parents withdrew their consent for physical therapy, an evaluation was necessary to determine the Student’s current level of functioning and whether he currently needed physical-therapy services. There was also ample support that the Student needed an educational assessment to determine his current level of functioning because his academic progress has been inconsistent over the years, and the Children’s Hospital evaluation raised the possibility of a learning disability that needed further exploration. The Hearing Officer rejected the request for consent for certain assessments—occupational-therapy, health, and home assessments—because there was no convincing evidence that the Student had unmet needs in those areas. Lastly, the school district sought “projective testing” and carried the burden of proof on this issue. The Hearing Officer denied the district’s request, basing her determination on the fact that none of the school district’s staff had experience or expertise in projective testing, and Maynard’s testimony that the Student needed projective testing because Maynard “may be” looking at yet-unidentified emotional needs of the Student. This was unpersuasive given the admission that Student was functionally relatively well. Therefore, although the Parents did not participate in the hearing, the Hearing Officer still awarded the school district their desired relief only where it presented strong and convincing evidence for it.

In Lexington Public Schools and Minuteman Regional Vocational Technical School, BSEA #09-0139, 16 MSER 151 (2010), the Hearing Officer ruled on motions to dismiss by the school districts and a motion to restore Parent’s retroactive claims, as well as a motion to quash some subpoenas. Throughout her longstanding dispute and litigation with the school district, the Parent was represented by various attorneys and an advocate and at times acted pro se. After the matter at the BSEA had remained open for approximately a year and a half and numerous postponements had been granted to the Parent, the matter was advanced to a hearing. During the Friday afternoon and late on the Sunday evening prior to commencement of the hearing, voice messages were left by the Parent’s doctor and advocate saying that the Parent could not go forward with the hearing for unspecified “medical reasons.” Neither the advocate nor Parent appeared at the commencement of the hearing. The Hearing Officer attempted to call the Parent and advocate and then made several unsuccessful attempts to contact the Parent’s doctor. The Hearing Officer therefore dismissed the Parent’s retroactive claims with prejudice but declined to dismiss the prospective claims with prejudice.

In support of the Parent’s request to re-open those claims, Parent asserted that she had a disability (dyslexia) and submitted a letter to that effect from her treating doctor. This doctor stated that the Parent had various learning disabilities as well as ADHD, depression, and anxiety, and therefore the Parent, who possessed a very high intellect and was competent in other areas, had difficulty organizing material and processing written information. However, the Parent held a medical degree, was licensed to practice in Massachusetts, was on the faculty of Harvard Medical School, and testified as an expert witness in state courts. In addition, while unrepresented, Parent was able to file sophisticated memoranda. There was, further, a very real threat of significant prejudice to the school district and Minuteman Regional Vocation Technical School if further postponements were granted on the Parent’s retroactive claims. The school district and school had expended significant resources readying for the hearing and were already prejudiced in presenting their case concerning retroactive claims since several school witnesses were no longer employed by the school or district and additional delays would further hamper their memories. The Parent had also demonstrated a pattern of requesting a hearing but requesting postponements when offered the opportunity to present her case. For all these reasons, the Hearing Officer refused to overturn her decision dismissing with prejudice the Parent’s retroactive claims. The ruling demonstrates that the BSEA is extremely accommodating of pro se parents, but there is a limit to how accommodating it will be.

The prospective claims of the Student were determined after a three-day hearing in Lexington Public Schools, 16 MSER 161 (2010). The Parent sought placement for the Student in a combined high-school/college program with a tutor and an aide funded by Lexington. At the time of the hearing, the Student was 17 years old and diagnosed with Asperger’s Syndrome, ADHD, semantic, written-language, and social-pragmatic learning disabilities, and executive-functioning deficits. He attended the Lexington Public Schools until January 2007, when he withdrew from school pursuant to a home/hospital request. He then attended Minuteman Career and Technical High School (“Minuteman”) from September 2007 to November 2008. He did not subsequently re-enroll in Lexington and did not attend any further secondary schooling. Parent had a neuropsychological evaluation of Student done in January 2009 that yielded an extensive report with myriad recommendations. That expert contemplated Student’s dual high-school and college enrollment with a one-to-one aide to manage his academics as well as his social interactions. The Student thereafter took a class at the Harvard Extension School. Parent requested extensive accommodations and services, including “an aide in all settings.” Later, the Parent noted that she wanted an aide even for Student’s time spent “in pubs,” to assist him with social interactions. Harvard responded by listing certain accommodations it would permit, such as additional time for exams and the permission to have a note taker, but refusing to provide supportive services and other accommodations. Student testified that he spent up to 60 hours per week working on his physics class, much of it with one-to-one assistance from Student’s father or private tutor.

Parent sought Lexington’s funding and support for Student’s placement in a college program. Lexington offered various experts to support their position that the Student needed to be placed in a therapeutic day program to address his social and emotional needs. These experts were experienced educators who testified that Student needed to be reintegrated into an appropriate academic setting and that setting must be in a therapeutic milieu at the high-school level. Lexington proposed placement in Pathways Academy. The Student testified at the hearing that he would try Pathways if ordered, as long as it did not interfere with his physics class. All the witnesses, even Parent’s independent expert, testified that the Student had great deficits in social pragmatics, was immature for his age, and lacked the social/emotional independence required for adult functioning. Parent admitted that she contemplated Student’s needing an “aide for life.” It was clear that in order for Student to participate in a college program he would be dependent upon a one-to-one aide, which would not help him progress in social pragmatics, his greatest deficit.

For this Student to receive all of his instruction in an essentially one-to-one format posed two insurmountable issues for the Hearing Officer. First, such a setting was overly restrictive and therefore would be a denial of FAPE, since it would not be the least-restrictive setting. Second, it would not help him make effective progress in his social pragmatic skills. Allowing him to “skip over” the essential skills he needed to glean from a secondary-school environment would most likely doom him from ever acquiring those essential skills. Parent’s experts failed to effectively attack the appropriateness of Pathways, and none of them had observed the Student in a secondary-school placement or had observed Pathways. Practitioners looking for support for cases where the social/emotional development of a student should take precedence over the academics can find support in this decision. The Hearing Officer ordered placement at Pathways if Pathways still had an opening for him. If not, Lexington was to locate a similar program.

Challenging the District’s action in a school-discipline case

It has become well-established that the BSEA is amenable to reviewing disciplinary actions taken by school districts. In Medford Public Schools, BSEA #10-6258, 16 MSER 191 (2010), the Hearing Officer examined the finding of no manifestation in Medford’s disciplinary proceedings as well as the appropriateness of the Interim Alternative Education Setting (“IAES”) proposed by Medford. The Student was 17 years old at the time of the hearing and had mild learning disabilities in language-related functions and executive functioning. During the 2008–2009 school year he was involved in numerous incidents for which he was disciplined. In March 2009, Medford proposed placement at the Curtis-Tufts School, an alternative school that provides high teacher/student ratios and emphasizes the generalization of appropriate behavioral skills. Parent rejected this placement, and for most of the academic year the Student was absent from school for medical treatment. Student was charged with a felony and Medford found no nexus between the felony charge and Student’s disability and excluded him from Medford High School pending resolution of the felony charge pursuant to MGL c.71, s.37H½. Medford offered again to place him at Curtis-Tufts School. Parent refused and the Student instead received home-based tutoring for the remainder of the academic year. Parent thereafter accepted placement in Curtis-Tufts and Student attended there from September until mid-December 2009. By all accounts, Student did well at Curtis-Tufts.

After the pending felony charges were dismissed, in mid-December 2009, Student returned to Medford High School. At Medford High, he was accused of numerous disciplinary-code violations and accumulated nine out-of-school suspensions by March 30, 2010. The Student was also charged with another felony, breaking and entering a vehicle and resisting arrest. Medford conducted a manifestation determination on March 31, 2010, to determine whether there was a direct and substantial connection between the Student’s identified disabilities and the offending behavior. While the Parent contended that Student’s behaviors in and out of school were a direct result of the impulsivity associated with his ADHD, poor language processing, and executive-functioning deficits, the Student himself stated at the manifestation determination that he understood the rules as well as the consequences of breaking them. He stated that he engaged in the prohibited activities because he thought he would not get caught. The Team determined that there was no substantial connection between the Student’s disabilities and the offending behaviors. Subsequently the school principal excluded Student from the high school because of the pending felony charge. The Student re-entered Curtis-Tufts.

This finding of no manifestation was reviewed in the BSEA hearing and supplemented by testimony from Student’s teachers and adjustment counselors that Student was able to conform his behavior to appropriate expectations and that much of the offending behavior was not the result of impulsivity, but rather the product of careful planning. The Parents relied on the testimony of Student’s psychologist, who opined that there was a nexus between the Student’s in-school misbehavior and his substantial executive-functioning disability. The Hearing Officer accorded little weight to the psychologist’s opinion for various reasons, including that although he had seen Student in 2009, there was a long gap where he did not see Student; there was no evaluative data of a substantial executive-functioning disability; he did not conduct a neuropsychological evaluation; and he failed to review the record of the incidents or the Student’s IEP. Again, we are sensitive to the fact that pro se parents with limited resources cannot not always assemble an extensive team of qualified experts to support their case. However, several things could have been done in this instance to buttress this expert’s opinion without significant effort. The Hearing Officer found that Medford had properly followed the disciplinary procedures and the IAES at Curtis-Tufts was appropriate.

Challenging the impartiality of the assigned Hearing Officer

The Parents in Scituate Public Schools, BSEA #10-6419, 16 MSER 141 (2010), moved to recuse the Hearing Officer assigned to their case. The basis for the request was that the Hearing Officer and the school’s district attorney appeared to be friends, based upon their cordial interaction with each other and their appearance on a Massachusetts Continuing Legal Education (“MCLE”) seminar faculty together. The form of the request was a letter to the director of the BSEA. Following appropriate procedure, the director forwarded the letter to the Hearing Officer, who scrupulously analyzed the applicable law and regulations and applied them to the instant motion. The Hearing Officer asserted that she had no personal friendship with Scituate’s attorney and that she maintains a cordial and professional rapport with the relatively discrete number of school and parent-side attorneys who regularly practice before the BSEA. Concerning the MCLE faculty, many members of the bar appear on such panels, often with Hearing Officers and judges, and such public service in advancing the professional education of the bar does not undermine the impartiality of judges or Hearing Officers. The Hearing Officer denied the motion for recusal, stating that “beyond a shadow of a doubt” she had no bias in the matter. The decision is instructive about the interaction between attorneys and BSEA Hearing Officers, as well as to the procedure and standards that apply in motions to recuse.

Lack of progress or even regression is not enough to establish inadequacy of a District’s program

The Hearing Officer in a 38-page decision painstakingly addressed numerous compensatory- and prospective-services claims in Longmeadow Public School, BSEA #08-0673, 16 MSER 217 (2010). The 14-year-old Student in this case was severely physically disabled as a result of spastic quadriplegia cerebral palsy. Despite intensive services, the Student had regressed or made no progress in communication and important physical capabilities. The Parents sought compensatory services and maintenance of Student’s current placement with the addition of certain therapies. Longmeadow conceded that certain related services were not provided and should be made up, but sought to change Student’s placement to Lower Pioneer Valley Educational Collaborative (LPVEC). The decision was a mixed one for the parties, with Longmeadow generally prevailing on the appropriateness of its IEPs and the Parents prevailing on their desire to maintain the current placement and the need for compensatory services.

The matter was originally filed in 2007 with the Parents’ hearing request. Along the path to hearing, the parties agreed to stand down while evaluations were being conducted and in 2008 entered into a “Preliminary Interim Agreement” while awaiting an evaluation from Franciscan Children’s Hospital. Concerning the appropriateness of past IEPs, the Hearing Officer took note of the general and well-established rule that acceptance of an IEP precludes the Hearing Officer from considering its appropriateness. Exceptions, such as lack of informed consent on the part of the Parents, was not present in the instant case. Therefore the Parents were barred from complaining that the contents of the accepted IEPs were inappropriate. Parents were free to dispute the appropriateness of rejected portions of the IEPs, such as for occupational services. However, here the Parents failed to establish the inappropriateness of the rejected portions of the IEPs.

Concerning to all parties was Student’s uncontroverted regression and lack of progress in certain areas such as speech and language as well as gross- and fine-motor skills. While establishing such regression is typically the knockout blow in a challenge to the appropriateness of a school district’s program, here it was not sufficient. Here the Student’s regression or lack of progress may very well have been attributable not to any deficiency in the district’s services but to Student’s physical growth and attendant greater difficulty with certain abilities, such as motor tasks. Parents did not present expert or other meaningful evidence linking the regression or lack of progress to inadequate services or proving that alternative therapies or services would have allowed the Student to make greater progress. The experts who did testify were not qualified to opine about those areas, and experts who may have those qualifications were heard only through brief opinion letters and not testimony.

One of the principal things sought by Parents was reimbursement for, and prospective provision of, “conductive therapy” to the Student. Conductive therapy is an educational or therapeutic approach relying heavily on traditional therapies, such as physical and speech therapies, to facilitate the Student’s movement patterns and weight-bearing. Student had received conductive therapy at various times in his life, which Parents maintained was beneficial. However, no conductive-therapy expert testified and there was no evaluation or written report recommending it. Therefore, Parents did not meet their burden of proving that Longmeadow should have offered to provide it in the past or future.

Concerning the disputed issue of prospective placement, the Hearing Officer ruled in favor of the Parents by maintaining the current placement. The primary reason for this was uncertainty about the Student’s true cognitive abilities, given the conflicting evidence and lack of any reliable cognitive testing of the Student. Therefore, moving the Student to LPVEC, with a comparatively lower cognitive level of its students, might negatively impact the Student, and Longmeadow did not meet its burden in justifying the change. The Hearing Officer put the matter back on the Team to validly assess the Student’s cognitive profile and locate an appropriate placement.

In determining the various amounts of compensatory services owed, the Hearing Officer thoroughly analyzed the evidence to determine what amounts, even to the half-hour, of compensatory services were owed in areas such as speech, physical therapy, and occupational therapy. Reiterating that the award of compensatory services is “an equitable, discretionary remedy that may be ordered after consideration of all of the circumstances” the purpose of which is to make the Student whole, the Hearing Officer declined to compensate for Longmeadow’s undisputed failure to provide a one-to-one aide, when it had provided, under no obligation to do so, a one-to-one special-education teacher.

The Hearing Officer lamented in his decision that three years of litigation had not appeared to provide any greater insight into the Student’s needs or how best to address them. He strongly encouraged the parties to work together to obtain appropriate assessments and fashion a program around it.

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Massachusetts enacts an anti-bullying law.

As a result of the publicity surrounding a particularly egregious instance of bullying that may have driven one high-school student to suicide, Massachusetts recently enacted an anti-bullying statute. But because the public and media attention resulted in pressure to pass such a law swiftly, criticism has subsequently been leveled that the law went too far as well as not far enough. Families and the education community are closely watching the effectiveness and impact of this law. “Bullying” is defined broadly as the repeated use by one or more persons of a written, verbal, or electronic expression, or a physical act or gesture, or any combination thereof, directed at a victim that (i) causes physical or emotional harm to the victim or damage to victim’s property, (ii) places the victim in reasonable fear of harm to himself or of damage to his property, (iii) creates a hostile environment at school for the victim, (iv) infringes on the rights of the victim at school, or (v) materially and substantially disrupts the education process or the orderly operation of a school. “Bullying” also includes cyber-bullying.

The statute prohibits bullying not only at school and school-sponsored activities and functions, but also beyond if the bullying creates a hostile environment at school for the victim or infringes on his/her rights at school or is otherwise disruptive of the school. In addition, the statute imposes obligations on schools to (i) provide instruction on bullying-prevention in each grade, (ii) develop and adhere to a plan to address bullying-prevention and intervention, (iii) provide professional development in these areas, (iv) annually provide written materials regarding bullying policies to students and parents, (v) have personnel report incidents of bullying to the principal or designated person, and (vi) inform the parents of both the victim and the perpetrator of any instances of bullying.

Concerning a child with special needs whose disability affects his/her social-skills development or makes him/her vulnerable to bullying, the Team is required to include in the IEP skills and proficiencies needed to avoid and respond to bullying.

The statute states: “Nothing in this section shall supersede or replace existing rights or remedies under any other general or specific law, nor shall this section create a private right of action.” It is uncertain what enforcement will be available to ensure that schools implement the requirements of this statute and of any regulations that follow. We hope the DESE take all appropriate steps to ensure that schools reduce the pervasiveness of—and the harm done by—bullying.

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The BSEA moves to DALA

Robert K. Crabtree, Esq.

As of July 1, 2010, the Bureau of Special Education Appeals officially moved from under the Department of Elementary and Secondary Education (“DESE”) to the agency known as the Division of Administrative Law Appeals (“DALA”). At this point the transition is administrative only; the BSEA will continue to occupy offices in the DESE building in Malden until/unless other space is secured for its operations. Thanks to the efforts of special-education stakeholders—parents, advocates, and school-district representatives alike—this move is taking place with a minimum of disruption and in a way that should preserve the integrity and continuity of an agency that has built a reputation as one of the most professional administrative due-process systems in the country.

The legislation establishing the BSEA’s new legal home was enacted as an outside section of the budget for the new fiscal year. That provision completed a process that began in the fall of 2008, when the then-new Commissioner of Education, Mitchell Chester, addressed a letter to the U.S. Secretary of Education in which he questioned the legality under IDEA of having due-process Hearing Officers and mediators serve as employees of DESE.

The Commissioner’s letter came as a surprise to many in the special-education community, as the BSEA had carried out its operations “in but not of the Department” for some 34 years without any issues arising that called the BSEA’s independence into question. A challenge had been raised in the early years by the federal Office for Special Education Programs (“OSEP”) about the BSEA’s location under the auspices of the Department, but that challenge had been resolved by establishing a system of supervision by an agency outside the Department—an office at the University of Massachusetts. The Commissioner’s letter suggested that the protocol for supervision by UMass personnel had fallen into disuse and that a more comprehensive systemic change was likely needed in order to ensure the independence of the agency. OSEP responded to the Commissioner’s letter by agreeing that a change needed to be made, leaving it up to the state to determine what shape the change should take.

Parents, school districts, and attorneys on both sides of BSEA cases raised concerns at that juncture that Massachusetts might go the way of the many states that employ revolving panels of part-time Hearing Officers to decide cases arising under IDEA (states that included Ohio, where the Commissioner had worked before coming to Massachusetts). The idea of turning from a group of highly experienced Hearing Officers in an agency that had developed a deep reservoir of precedents to a list of private attorneys contracting to provide part-time attention to special-education disputes was troubling to all those who regularly work in special-education advocacy.

DESE responded by engaging a consultant, Perry Zirkel, Ph.D., J.D, a professor of education and law at Lehigh University who had written extensively on special-education law and process, to review the history of the BSEA in Massachusetts, to interview stakeholders, and to report with an analysis of the structural options available to provide a new home for the hearing and mediation functions of the BSEA.

After discussions with many individuals representing school systems and parent-advocacy groups, attorneys for schools and for parents, and other key individuals in the special-education system, Dr. Zirkel noted that the BSEA is a highly professional adjudicative agency that carries out its functions competently within a state that provides an unusually sophisticated context for special-education issues.

Regarding the state history and context in this area, he noted:

“Massachusetts has played a leading role in the history of special education law. Its own positive (i.e., disability-favorable) education legislation pre-dated the passage of the original 1975 version of the IDEA. Moreover, for several years the legislation included a definition of eligibility and a substantive standard for appropriateness that clearly exceed the scope and substantive standard under the IDEA. Finally, Massachusetts’s prevailing policies for procedural protections, such as the current BSEA practice of processing procedural safeguards notices as an automatic consequence of every parentally rejected individual education program (IEP), are relatively remarkable in comparison to most states.

“As another, less central indicator of its relatively unusual level of sophistication in special education law, Massachusetts is the only state known to the consultant that has a specialized publication specific to its Hearing Officer decisions—specifically, the Massachusetts Special Education Reporter, a privately published service that features “commentators” from two law firms—one representing school districts and one representing parents.”

Regarding the BSEA itself, Dr. Zirkel noted:

“Massachusetts’s mediation and Hearing Officer system under the IDEA has a well-earned reputation for sophistication and innovation. Examples of legal sophistication include the following:

  • the jurisdictional coverage of disputes under the overlapping scope of Section 504 of the Rehabilitation Act;
  • the formal adjudicative procedures for addressing pre-hearing and interlocutory issues in hearings;
  • the generally thorough factual findings and legal analysis of the Hearing Officer decisions;
  • the well-regarded effective settlement conferences;
  • the availability of advisory opinions;
  • the development of the new “SPED-EX” procedure, which will provide the availability of an advisory opinion based on the perspective of a special education clinical professional.”

The implications of Dr. Zirkel’s overview were clear (though he did not explicitly recommend one solution over another): that the BSEA, its Hearing Officers, and its mediators constituted a system that was well worth preserving. He noted that while the alternative of part-time Hearing Officers might offer some “control” and “flexibility,” the contractor option posed “less likelihood for expertise, independence, and stability.”

Following Dr. Zirkel’s report, DESE zeroed in on the Division of Administrative Law Appeals as the most likely viable option to house the BSEA. (There was discussion of UMass-Boston as a possible alternative, but apparently little interest in pursuing it compared to DALA.) DALA’s Hearing Officers adjudicate disputes arising out of the work of a wide array of state agencies, and DALA thus offered a ready-made infrastructure to support the kinds of activities endemic to the BSEA’s operation. Advocates’ concerns about the DALA solution focused on DALA’s well-publicized backlog of unresolved appeals and the need to ensure that BSEA Hearing Officers were insulated against being drawn into helping solve that backlog problem. They also wanted to ensure that Hearing Officers deciding special-education cases would have the experience and knowledge necessary to do so competently.

These concerns were resolved in the legislation by providing for a virtual “firewall” around the BSEA within DALA, restricting BSEA Hearing Officers to hearing BSEA cases, limiting the use of non-BSEA Hearing Officers to time-limited emergency circumstances when caseloads and understaffing of the BSEA require temporary assignments and requiring that any non-BSEA Hearing Officers in those unusual circumstances meet the same standards and qualifications as required for permanent BSEA Hearing Officers.

In an interesting new development, the BSEA to DALA legislation also provided for the creation of an advisory council to provide oversight and advice to DALA and the BSEA regarding its performance, including such things as the range and types of alternative dispute-resolution mechanisms, mechanisms for training, mechanisms for improving access for pro se parents and non–English-speaking families, and “mechanisms to ensure that the bureau is appropriately maintained and operated both as a separate subdivision of the division and independent of the department.” Members of this BSEA Advisory Council will be appointed by a spectrum of representative parent and school-side agencies and by the President of the Senate and Speaker of the House of Representatives.

Advocates owe a debt of gratitude to the Massachusetts Advocates for Children and particularly to Julia Landau, who coordinated efforts throughout the process leading to this legislation to ensure that the BSEA’s integrity and professionalism would be protected. Governor Patrick’s office played a critical role in helping parties resolve their concerns and differences at some key points when discussions seemed stymied. Above all, in the political realm, advocates should note that a coalition of Representatives and Senators who regularly work to advance the interests of children with disabilities were instrumental in bringing about the very promising resolution of this complex process. Special thanks go to Rep. Martha Walz, the House Chairperson of the Education Committee, who dedicated hours of her time and considerable intelligence to the work of shaping viable solutions to the many difficult problems that emerged in this process.

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