Overview

Commentary on Massachusetts Special Education Decisions: 2nd Quarter, 2011, by Daniel T.S. Heffernan:

April 03, 2011

Introduction

This quarter’s fourteen decisions provide insight into a wide variety of determinations made by the BSEA. There is an instructive comparison between two decisions by the same hearing officer involving unilateral placement at the Landmark School which yielded different results. There are also decisions involving a METCO student, an exception to the statute of limitations, a parent’s “acceptance” of an IEP not equaling “consent” to that IEP, as well as a tort action on behalf of a student sexually assaulted at school by a school employee. Significantly, this quarter’s decisions reflect a recent trend in litigation before the BSEA: bringing motions that seek to dispose of all or part of the action short of a full hearing. Of this quarter’s fourteen decisions, seven were rulings on motions to dismiss or for summary judgment and a “partial decision.”

Dispositive Motions

In Massachusetts Superior Court and Federal District Court, motions to dismiss and for summary judgment have long been standard fare. Tracking orders which establish deadlines for lawsuits in those forums always provide dates for the filings of motions to dismiss and summary judgment.

In BSEA actions, while the procedure for filing such motions has always existed, it is only recently that an increasing number of BSEA litigants, parents and school districts alike, have availed themselves of this option. Both the BSEA Hearing Rules (Rule 17B) and Massachusetts Executive Office of Administration and Finance Adjudicatory Rules of Practice and Procedure (801 CMR 1.01(7)(g)3)) empower a hearing officer to allow a motion to dismiss if the moving party fails to state a claim upon which relief can be granted. Since the rule is analogous to Rule 12(b)(6) of both the Massachusetts and Federal Rules of Civil Procedure, BSEA hearing officers have generally used the same standards as those courts in deciding motions to dismiss for failure to state a claim. A motion to dismiss should be granted only if the party filing the appeal can prove no set of facts in support of his or her claim that would entitle him or her to relief that the BSEA has authority to order. A hearing officer may dismiss a case if the hearing officer cannot grant relief under the federal or state special education statutes or relevant portions of Section 504. In acting on a motion to dismiss, courts typically consider only the complaint and answer. If other materials, such as affidavits, are submitted, the motion is often converted to a motion for summary judgment. The hearing officer may consider other information without formally converting the motion to one for summary judgment if there is no prejudice to either party. The standard for deciding motions to dismiss and summary judgment vary significantly. For motions to dismiss, the hearing officer must accept as true all well pleaded factual averments and draw all reasonable inferences in favor of the party opposing dismissal. In summary judgment motions, a court will determine whether there is “any genuine dispute as to any material fact” and if there is not, decide whether or not to enter judgment on all of part of the lawsuit.

Practitioners and litigants should consider motions to dismiss and for summary judgment an important arrow in their litigation quiver. However, like any weapon, it is only effective if used properly and in the appropriate situation. Such motions typically involve fewer resources and time than a full evidentiary hearing. They may dispose of an entire claim. In situations where they dispose of only a portion of the claim, it may lead to settlement of the remaining claims or at least a more streamlined hearing. However, futile motions only serve to delay the ultimate resolution of the claim and waste the resources of the litigants and the BSEA.

Failure to provide translated notice of procedural rights and IEP negates the district’s defenses

In Boston Public Schools, BSEA #11-4676, 17 MSER 76 (2011), the hearing officer amended his previous ruling allowing Boston’s motion to dismiss. The student involved was 20 years old and attended East Boston High School. He was diagnosed with significant cognitive delays and was on an IEP from Boston since 1993. Although he was bilingual, his parents were not. The parents sought prospective and compensatory relief for the student and claims relating to transition services. Previously, the hearing officer had dismissed the parents’ claims for their failure to bring them within the applicable IDEA statute of limitations, which provides, at 20 USC § 1415(f)(3), that “a parent or agency shall request an impartial due process hearing within two years of the date the parent or agency knew or should have known about the alleged action that forms the basis of the complaint. . .” In the instant action, the parents had not brought the action within two years and therefore the action was dismissed.

The parents sought reconsideration pursuant to the exception to the statute of limitation bar: “The timeline described in subparagraph (C) shall not apply to a parent if the parent was prevented from requesting the hearing due to. . .(i) specific misrepresentations by the local educational agency that it had resolved the problem forming the basis of the complaint; or (ii) the local educational agency’s withholding of information from the parent that was required under this subchapter to be provided to the parent.” To meet this exception, parents must demonstrate that requisite information was not provided and second, that the parent was thereby prevented from timely requesting the due process hearing.

Boston failed to provide, as required, translated notices of procedural safeguards for 2005-2006, 2006-2007, 2007-2008, and 2008-2009 school years. This hearing officer held that failure to provide this notice implicates both requirements of the exception to the statute of limitations, for how can a parent be required to request a hearing within a certain time frame when not told of that deadline?

Boston also sought to dismiss claims relating to the appropriateness of earlier IEPs because they had been accepted by the parents. The general and well settled rule is that acceptance of an IEP precludes a hearing officer from thereafter considering its appropriateness. Several BSEA decisions have established this: In re: Yale and Upper Cape Cod Regional Technical School and Sandwich PublicSchools, BSEA #06-0501 & 06-0808, 11 MSER 200 (2005), In Re: Quabbin, 11 MSER 146 (2005); as well as the Federal District Court; Doe ex rel. Doe v. Hampden-Wilbraham Regional School Dist., 715 F.Supp.2d 185, 194-195 (D.Mass 2010). However, here again, Boston’s failure to comply with the requirements regarding non-English speaking families led to an exception to this rule. The IEPs for the student when he was under 18 years old were not written in the parents’ native language. While the term “accept” is utilized on Massachusetts IEP forms and generally referred to in BSEA decisions regarding IEP responses and found in Massachusetts special education regulations, the regulations do not define “accept.” However, Massachusetts regulations refer to “consent” and the federal IDEA regulations use consent instead of accept. The federal regulations define consent, at 34 CFR §300.9(a), in part to mean, “The parent has been fully informed of all information relevant to the activity for which consent is sought, in his or her native language, or other mode of communication.”

Because of Boston’s failures to provide the IEP in the parents’ native language, and drawing all inferences in the parents’ favor in ruling on Boston’s motion to dismiss, the hearing officer found that Boston’s failures precluded parents from providing legally effective acceptance of the IEPs and therefore denied Boston’s motion to dismiss on this ground.

As to the 2008-2009 IEP, when the student was 18, neither the parents nor the student attended the IEP meeting. Boston failed to invite the student to the team meeting (34 CFR §300.9(a)) and failed to comply with their affirmative duty to schedule the meeting at a mutually agreed on time and place (34 CFR§300(9)(a); 603 CMR 28.02(4)), or document that before holding a meeting without the parents it had made phone calls, visits, etc. in an attempt to schedule the meeting at a mutually agreeable time and place (34 CFR§300.321(b)(1)). Because of these failures, and again under the motion to dismiss standard, the hearing officer found that Boston’s failures precluded the student from providing legally-effective acceptance of the IEP and therefore denied the motion to dismiss.

In Bridgewater-Raynham Public Schools, BSEA #11-6444, 17 MSER 91 (2011), the hearing officer ruled on parents’ motion to dismiss Bridgewater-Raynham’s hearing request seeking substituted consent for an evaluation of a sixth grader. Parents had previously filed a hearing request that was withdrawn after the parties reached agreement in their resolution session. At that resolution session, they agreed to have the student undergo multiple evaluations by Bridgewater-Raynham and READS Collaborative. The Team reconvened after these evaluations and minor changes, requested by parents, were made to the IEP, but not signed by the parents. Subsequently, the parents, through their advocate, wrote to Bridgewater-Raynham to request an independent evaluation by a psychologist. Three days later, the director of special education responded requesting that the parents identify what evaluation they disagreed with and why, and requested information regarding the proposed independent evaluation as well as the parents’ financial information. The parents filed a complaint with DESE’s Program Quality Assurance (“PQA”). When PQA learned the parents had scheduled a mediation, PQA set aside their complaint. They reopened it when the mediation was cancelled. Bridgewater-Raynham requested parents’ consent to evaluations in speech and language and psycho-educational areas. When parents refused to consent, Bridgewater-Raynham filed its hearing request.

Parents first argued that the BSEA should not hear the matter because the PQA was investigating these issues. The hearing officer dismissed this notion, because the BSEA essentially preempts the jurisdiction of the PQA. Support for this proposition is located even within the DESE PQA Services, Compliance and Monitoring, Problem Resolution System Information Guide which states that federal law prohibits the DESE from investigating a complaint where the parties are engaged in a BSEA proceeding relating to the same issues. While the parents maintained that Bridgewater-Raynham instituted the BSEA proceedings simply to derail or deny the parents’ right to a PQA investigation, at the motion to dismiss stage there was no evidence to draw such a conclusion.

The hearing officer characterized Bridgewater-Raynham’s attempt to conduct further evaluations seven months after their previous comprehensive evaluations as an attempt to get a “second bite at the apple.” Therefore, Bridgewater-Raynham’s request for this was dismissed.

The hearing officer then examined parents’ request for an independent evaluation and Bridgewater-Raynham’s response. Under the hearing officer’s strict reading of Massachusetts regulations, she held that 603 CMR 28.04(5)(d) accords the district only two options in responding to such requests: pay for the evaluation or request a hearing within five days. While the parents’ letter requesting the independent evaluation was deficient in certain respects, the district’s response was insufficient to toll the five day deadline, and since Bridgewater-Raynham failed to file a hearing request within five days, it was obligated to fund the independent evaluation. The hearing officer not only dismissed the hearing request, thereby preventing the district from reevaluating without the parents’ consent, but also affirmatively ordered Bridgewater-Raynham to fund the independent evaluation after parents provide more information about that evaluation.

In Springfield Public Schools, BSEA #11-4290, 17 MSER 81 (2011), an Educational Surrogate Parent (“ESP”) sought an order determining that the ESP’s retention of an attorney to file and prosecute a hearing request on behalf of the ESP and the student is a reasonable expense related to the ESP’s responsibilities as a surrogate parent. It was also argued that the school district should reimburse the ESP or in the alternative, have the DESE, Department of Children and Families or Springfield provide a funding mechanism for that purpose. The student was a 16 year old and in the permanent custody of the DCF. It is well settled that the BSEA lacks authority to award attorney fees even to prevailing parties—that authority rests with the appropriate state or federal court. There is also nothing in state or federal special education statutes that grants parents the right to publicly funded counsel. Therefore, since the ESP had failed to “state a claim upon which relief may be granted,” the motion to dismiss was allowed. (That said, while the hearing officer may have been correct in the ruling, this matter reflects a serious gap in the effective rights and protections that a person for whom an ESP must be appointed should have. Money should be allocated within a responsible agency—be it DCF or DESE—and legislative attention should be paid to the injustice of a situation that effectively denies a student effective access to due process.)

The school district in CBDE Public Schools, BSEA #10-6854, 17 MSER 107 (2011) asked the hearing officer to dismiss a claim arising from the sexual assault of a student because the BSEA lacks authority to grant the requested relief of monetary damages. The student’s hearing request alleged that a CDBE employee raped the student, who was 14 years old at the time and not yet determined eligible for special education or Section 504. As a result of the rape and continued contact with the alleged perpetrator for months, the student was severely traumatized. This was manifest in escalating behaviors and emotional outbursts that resulted in her hospitalization on two occasions. The parents allegedly “begged for help” from the school for the student. The hearing request claimed that CBDE should have identified the student as having a disability and needing special education or related services pursuant to its “child find” responsibilities under federal special education law. Had it done so, the hearing request alleged, the rape would have been discovered earlier and the student would not have suffered such trauma or needed hospitalizations. The hearing request sought three types of relief: CBDE’s funding of a therapeutic placement; reimbursement for parents’ funding of her placement; and, lastly, monetary damages for negligence, loss of consortium, the rape, emotional distress and other torts. The first two claims were dismissed by the hearing officer previously after the parents signed the IEP for prospective placement and no placement costs had been incurred by the parents.

Concerning the claim for monetary damages, CBDE sought dismissal because the BSEA could not award that requested relief. This same hearing officer had, in Mashpee Public Schools, 14 MSER 143 (2008) and 14 MSER 156 (2008), provided an extensive analysis of the BSEA’s role in the litigation of such damages actions. “Exhaustion” is the requirement that disputes arising out of the provisions of special education services must first be brought to the BSEA before proceeding to federal or state court. In some of those decisions, courts had dismissed actions that were not first fully litigated at the BSEA, even if the claim was solely for monetary damages and did not involve claims brought under the IDEA. In Mashpee, the primary focus of the hearing officer’s decisions related to the scope of the hearings before him and the parameters of his decision. In the instant case, the hearing officer again reviewed the leading court cases regarding exhaustion and found that the BSEA is required to conduct fact finding even when it cannot award the damages the parents seek. The hearing officer noted that if he ruled otherwise, it was his belief that the dispute would likely be returned to the BSEA by a state or federal court for failure to exhaust administrative remedies.

The hearing officer in New Bedford Public Schools and Cody, BSEA #09-3103, 17 MSER 131 (2011), ruled on numerous motions to dismiss, resulting in the dismissal of all the claims before him. The student, who was in the custody of DCF as a result of a Child in Need of Services (“CHINS”) petition, had been placed at St. Vincent’s day and then residential program. The parent filed the hearing request against New Bedford and DCF in November 2008. The parties agreed to submit an agreed statement of facts and motions for summary judgment solely on the issue of the student’s stay put rights. In February 2009, the hearing officer denied the parent’s motion for summary judgment but allowed New Bedford’s, determining that the stay put rights did not arise from the student’s placement at St. Vincent’s by DCF for custodial, non-educational purposes. The parent appealed to superior court. Then the parent agreed to place student “on a temporary basis” at the district’s Westside School. In addition, the parent regained custody from the DCF and consented to the dismissal of the CHINS. The BSEA, at the request of all parties, placed the proceeding “off-calendar.” In January 2010 New Bedford proposed an IEP for January 15, 2010 to January 15, 2011 placing the student at Trinity Academy (formerly Westside School). Parent consented, again maintaining that this was a “trial period placement.”

New Bedford moved to dismiss the parent’s BSEA appeal citing BSEA Rule 18(D) which provides: “A case that has not been rescheduled, withdrawn, or requested to be scheduled by either party for a period of one year from the original request for hearing shall be dismissed with prejudice.” New Bedford also noted that while the BSEA appeal lay dormant, the parent had accepted two IEPs. In March 2011, the superior court allowed New Bedford’s motion for summary judgment and DCF’s motion to dismiss and dismissed the parent’s court complaint on the grounds that the BSEA’s February 2009 BSEA rulings were correct and there was no longer any actual controversy regarding the placement issue from 2009.

The hearing officer followed suit and allowed New Bedford’s and DCF’s motions to dismiss. The hearing request addressed the St. Vincent’s placement and since the student had left there long ago and the hearing request was never amended to address the student’s new placement, the hearing request was moot. In addition, the parent had accepted the IEPs and the hearing officer would not re-open accepted IEPs, especially since they had already expired. The parent’s hearing request was therefore dismissed with prejudice.

The motion to dismiss standard applied to “never darken my door again” settlement agreement

The BSEA’s allowance of motions for summary judgment and dismissal disposed of a parent’s hearing request in Ipswich Public Schools, BSEA #11-7213, 17 MSER 135 (2011). The parties had entered into a settlement agreement that contained a “never darken my door again” clause. Such clauses typically involve an agreement for funding from the school district in exchange for an agreement that beyond a certain date the school district would not be obligated to provide or fund special education services. The BSEA has previously upheld the validity of such clauses. See In Re: Peabody Public Schools, 15 MSER 154 (2009).

In exchange for funding an outside day placement, the parent waived the right of the student to receive services of any kind after June 2012 regardless of whether or not the student received a high school diploma. The exception to this never darken my door clause was if a “catastrophic change in circumstances” arose. This term was defined as “the occurrence of an event which causes serious and prolonged physical or emotional injury resulting in a material and substantial change in [student’s] functioning. Further clarifying, an exacerbation of [student’s] emotional disabilities (including but not limited to, PTSD, OCD, depression, anxiety, and/or suicidal ideation) shall not constitute ‘Catastrophic Circumstances,’ even if such exacerbation results in prolonged hospitalization or need for psychiatric treatment.” The dispute before the hearing officer was the applicability of the exception to, and the validity of, the never darken my door again clause. The student was hospitalized at Cambridge Hospital for nine days and then referred to the Acute Residential Treatment Unit at McLean Hospital. The parent maintained that the agreement was void because the student now required a residential placement. The parent did not assert that there was a catastrophic change in circumstances and presented no expert support or other support to dispute the District’s contention that the hospitalizations were simply an exacerbation of student’s previous condition.

The parent also argued that as a matter of public policy agreements containing such never darken my door agreements should be voided since, if not, they would be allow to trump federal law requiring FAPE. The hearing officer held that it has been well established that such clauses are enforceable and not against public policy. He also noted that the parent, who appeared pro se, had been a licensed attorney for twenty years and should have understood what she waived in exchange for the funding.

Parents and their attorneys should consider the downside to agreeing to such clauses. However, virtually every agreement calls for some compromise or waiver of claims and the decision to bargain away rights for educational services beyond a set date may be, on balance, a wise one. Parents and their representatives should assume that they are enforceable. They must consider carefully the potential contingencies and “what ifs” that appear at the time of the agreement to not be possible or very probable. They should also attempt to seek an escape clause that will allow the student to continue to receive services if a material and unanticipated change occurs. In point of fact, the particular language of this agreement seems to us to be over-reaching insofar as it contemplates some extremely serious and life-altering consequences in a student’s change of circumstances that, just because they can be traced to the original disability would preclude continuing the district’s responsibility for the student past the end date of the agreement. We would urge districts to back off from the draconian implications of such language and parent advocates to fight against the insertion of such provisions.

The parents in Westborough Public Schools and Hal, BSEA# 10-7493, 17 MSER 75 (2011), pursued another more frequently employed pre-hearing request: seeking to join a state agency— the Department of Developmental Services (“DDS”). The student, a 13 year old with significant delays in all areas of functioning, was receiving DDS services in his home. The parents filed the hearing request seeking a residential placement and a determination that either Westborough or DDS must fund the residential portion of his program. Toward that end, the parents sought to join DDS to the proceeding. Westborough did not oppose the motion.

The statute providing for the jurisdiction of the BSEA over state agencies such as DDS—MGL c.71B, §3, as well as the regulation addressing it, 603 CMR 28.08(3)—and BSEA Hearing Rule 1(F), 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 only be able to access or benefit from the school district’s special education program if services over and above those that are the responsibility of the school district need to be provided by the human services agency. However, the BSEA may only act in accordance with that human services agency’s own rules, regulations and policies.

The hearing officer examined DDS’s rules and regulations and determined that the student was not generally eligible for DDS residential services because of his age. The relevant DDS regulation, 115 CMR 6.03, provides that a person with mental retardation over 18 years old is sometimes entitled to residential services subject to funding and availability. Therefore, since the student in question was 13, joining DDS would serve no productive purpose and the motion was denied.

An expedited “partial decision” on restraint issue

Although not a ruling on a dispositive motion, the hearing officer, at the request of both parties issued a “partial decision” about a discrete issue shortly after a five day hearing in Norwood Public Schools, BSEA #11-5444, 17 MSER 147 (2011). The parties had requested that the hearing officer rule on Norwood’s use of a “hip stabilizing belt” while feeding the student as soon as possible. The hearing officer obliged, issuing this partial decision within the week after the last day of hearing and within four days of written argument on the issue. The student had Pervasive Developmental Disorder (“PDD”) along with many medical concerns related to feeding. Norwood sought to use the hip stabilizing belt for the limited purpose of assisting with feeding and purportedly making it safer. Parents argued that the belt was not necessary and constituted an unauthorized restraint. The hearing officer found the decision to use the hip stabilizing belt to be comparable to a school district’s selection of a particular methodology of instruction and as such, entitled to deference from a BSEA hearing officer. The hearing officer further credited the district’s expert witnesses in this regard based on their longer observation of the student and was persuaded that the use of the hip stabilizing belt substantially improved his food intake and decreased the risk of choking. However, the hearing officer also deemed the hip stabilizing belt to be a “restraint” pursuant to 603 CMR 46.00 as it clearly limited “the physical freedom of an individual student by mechanical means.” As such, it could only be used if Norwood first complied with the requirements of the restraint regulations. Those regulations prohibit the use of mechanical restraints unless explicitly authorized by a physician and approved in writing by the parent or guardian. Since the parent refused to authorize the use of the hip stabilizing belt, Norwood could not employ it on the student.

The hearing officer then suggested a possible way for Norwood to use the belt. 603 CMR 46.02(5)(a) provides: “A protective or stabilizing device ordered by a physician shall not be considered mechanical restraint.” Therefore, if Norwood obtained such a physician’s order, it could use the hip stabilizing belt. Until such time, they were precluded from using it.

What are the responsibilities of the host district for a METCO student?

Lincoln Public Schools and Boston Public Schools, BSEA #11-4678, 17 MSER 95 (2011) involved a first grade student from Boston who had been attending school in Lincoln since September 2009 with the METCO program. Lincoln proposed an IEP calling for a substantially-separate, language based program for the student. Significantly, Lincoln did not have such a program or sufficient and appropriate peers to develop one. Therefore, Lincoln proposed placement back in Boston Public Schools and Boston stated that they were ready to place the student immediately into such a program. Parents opposed this placement, arguing that Lincoln should offer more services and support to educate the student in Lincoln’s mainstream. Lincoln presented detailed testimony about the student’s struggles in the inclusion classroom and how increased services from Lincoln still did not provide the student with enough support. They testified that while the student had made individual gains toward IEP goals and objectives, she was still unable to fully participate in first grade curriculum and she was a year below grade level in math and displayed numerous reading difficulties. Lincoln also testified that in class the student was often off task, made inappropriate noises, had emotional outbursts and difficulty initiating or sustaining independent play with peers. However, the most recent report card showed that despite her weaknesses, the student, with a modified curriculum and supports, was developing and making progress. Lincoln explored the CASE Collaborative but found that it did not have an appropriate peer group for the student, would not have allowed integration into mainstream classes and would have required an hour commute to the program.

Members of the Advocating Success for Kids (“ASK”) program at Boston Children’s Hospital evaluated and observed the student and testified on behalf of the parents. The hearing officer did not detail their testimony nearly as much as that of the Lincoln witnesses. They testified that the current Lincoln program could be made appropriate with additional modifications and increases in services. They also testified that student seemed happy in the Lincoln program.

The hearing officer found that maintaining the student in the Lincoln program with additional services would require an increase in one to one services, making the student “more adult dependent” resulting in greater alienation between her and her peers and resulting in her attending a more restrictive placement than the sub-separate program proposed.

Therefore the hearing officer ordered that the placement be in Boston’s sub-separate language based program. While the decision was issued on April 29, 2011, the hearing officer ordered that the change not be made immediately because the student was happy in the Lincoln program and such a transition late in the school year would be difficult for the student.

The push to create a comparable program closer to home unsuccessful in light of thestrong out of district program

The dispute in Northampton Public Schools, BSEA #11-4229, 17 MSER 139 (2011) centered on the parents’ desire to have their son educated closer to home. The student was 10 years old at the time of the hearing and was diagnosed with dystonic quadriplegic cerebral palsy in the severe range, cortical visual impairment, and apraxia of speech. He was non-ambulatory and used a wheelchair for transportation, communicated through vocalizations, an ECO augmentative communication device, a communication notebook, Mayer-Johnson picture symbols and a Little Step-by- Step switch.

Northampton granted the parents’ request for a referral to the Perkins School for the Blind in Watertown, Massachusetts. He was accepted and began attending there in September 2010. Although the student was accepted as a residential student, the parents initially transported him from Northampton to Perkins each day. Northampton had understood that Student would attend Perkins as a residential student because of its distance of approximately 100 miles from student’s home. Perkins staff also assumed that he would be a residential student due to the distance that he lived form Perkins. Northampton did not become aware that student was being driven to and from Perkins every day until the end of September.

Student attended most days in September, but was sometimes late. Student’s attendance record shows that he was present for at least some portion of 48 of 70 possible days during his period of attendance at Perkins. Those numbers did not include days on which he was tardy and missed a portion of his programming. The student spent his first night at Perkins on September 30, 2010 and spent approximately 17 of a possible 53 nights at Perkins during the course of his attendance. During November, the student was absent 11 of a possible 19 days. In December he was absent eight of a possible 13 days. Perkins staff testified that his stays in the residence were largely successful. The hearing officer noted with obvious admiration that Perkins offers a superb, well-integrated program. Perkins staff only wished they had more time to work with him.

The IEP developed for the placement was extremely comprehensive both in terms of goals and objectives, and services. In January 2011, the parents rejected the substantially separate setting and delivery of all services in Grid C.

During the 2009 and 2010 summers, the student attended Augmentative and Alternative Communication (“AAC”) summer camps which Northampton funded. The focus of the camp was on communication and training students’ paraprofessionals. At the AAC summer camp, the student was able to tolerate the noisy environment and the use of the ECO longer and more efficiently than he previously had. He was also joining into conversations with peers using the ECO. His use of the ECO was more efficient than it previously had been.

Hillary Jellison was a speech and language pathologist who focused primarily on people who use augmentative and alternative communication (“AAC”) devices. Ms. Jellison testified that the student needs a staff person with experience in AAC. Ms. Jellison had a contract with the Holyoke Public Schools to provide consultation regarding AAC. She was familiar with a “program” at the E.N. White School in Holyoke through discussions with her business partner, Nerrissa Hall, as well as the special education director in Holyoke. There were two students in that program, both younger than the student and one with a similar profile.

The parents sought to have student attend a program that Ms. Jellison and Ms. Hall proposed creating: an AAC classroom in September 2011. The proposed program, which did not yet exist, would be designed to provide students with access to a regular education classroom, occupational therapy, physical therapy, speech language therapy, and an AAC resource room. Ms. Jellison or Ms. Hall would run an “AAC classroom” where students would spend one to two hours per day. The student would be in an inclusion classroom for the rest of the day. There would be a paraprofessional in class and there could be two other students in the classroom. The student’s ECO would be mounted and available to him at all times. The parents sought this program because it would allow the student to live with his family and community.

This case stands as yet another reminder that when a parent seeks a placement other than that proposed by the school district, the focus is primarily on the adequacy of the public school program: in this case, Perkins. The appropriateness of the alternative program will not even be considered unless the district’s program is found to be inappropriate for the student. Here, the hearing officer praised the Perkins program in general as well as the specific IEP for the student. The testimony of the highly qualified parents’ expert criticizing the Perkins program was discounted because she was not familiar with the Perkins program and had not observed the student there or even spoken with his service providers at Perkins. The hearing officer ruled that the Perkins IEP was reasonably calculated to provide the student with FAPE in the least restrictive environment.

Although not required, the hearing officer took the opportunity to opine about that the proposed program was not appropriate for the student for several reasons, including the lack of specifics about the program as well as no assurance that the program would ever come to be. However, the hearing officer encouraged the parties to explore the possibility of developing this program in Holyoke.

Stay put for a transferring student

The student in Leominster Public Schools, BSEA #11-5122, 17 MSER 83 (2011) was a nine-year-old boy with autism and various medical issues, including eczema, asthma and allergies. Prior to moving to Leominster, the student lived in Haverhill. Under Haverhill’s 2009-2010 IEP, not accepted by the parents until April 15, 2010, the student had a 1:1 aide and various services, including extended school day and year. He was placed at the Therapeutic Educational and Assessment Center of Haverhill (“TEACH”). The student was enrolled in Leominster on May 3, 2010. The student began attending the PDD program at the FLLAC Collaborative. After one month in that program, Leominster proposed a new IEP which was rejected by the parents. This IEP called for placement at FLLAC as well as extended year services. The parties had a facilitated team meeting on September 30, 2010 and Leominster proposed a new IEP. The IEP called for extensive services and extended school year, but not extended day as had been provided for in the Haverhill IEP. The parents rejected this IEP, maintaining that the student required extended day services, a longer summer program and a placement in a separate day program. This last point appeared to be a matter of semantics in the label, since FLLAC was a separate program but housed in the Leominster’s Houghton Elementary School, and therefore not considered a “separate day program.” Leominster filed the hearing request seeking a determination that its IEP provides FAPE and the parents have no stay put rights from the previous Haverhill IEP.

The parents removed the student from school for several weeks beginning in December 2010, and did not return the student on a consistent basis until the second week of February, 2011. Prior to his removal, district staff testified that the student’s maladaptive behaviors had decreased. They spiked up when he returned to school in February. The staff also testified extensively and with great specificity that the student was making effective progress in the FLLAC program. Certain set backs or slow progress were attributed to his extensive absences from school.

There was also a dearth of evidence that the proposed IEP would not provide FAPE. The student’s mother testified that she was content with the goals and accommodations. In addition, no expert testified that the student required a longer summer program to prevent substantial regression or that he required an extended school day.

Concerning the stay put issue, Leominster, as the receiving school district, was obligated to provide services that were “comparable” to the IEP of the former district. 20 USC 1414(d)(2)(C) (i); 34 CFR 300.323(e); 603 CMR 28.03(1)(c)(1). The hearing officer found, with one exception, that the Leominster IEP provided comparable services. The only relevant difference was that Leominster’s IEP provided fewer weeks of extended year services. As a result, the hearing officer did award the student three weeks of compensatory services.

Three Landmark School unilateral placement cases provide insight into what makes a successful challenge to a school district program

During this quarter three decisions were issued concerning unilateral placements of elementary or middle school students at the Landmark School. Two of the decisions were by the same hearing officer. Each decision yielded different results. While every case is unique, a comparison of these decisions, issued within a short time of each other, offers valuable insight into the viability of claims for funding for programs such as Landmark.

The principal dispute in Hingham Public Schools, BSEA #11-3762, 17 MSER 111 (2011) was whether Hingham’s inclusion fifth grade classroom was appropriate for the student. While the parents and their experts endorsed this inclusion and pullout model for years, the parents unilaterally placed him at the Landmark School beginning in fifth grade.

The student had a variety of disabilities, including dyslexia, disorder of written expression and ADHD. The parents for the first time rejected an IEP in the spring of the student’s third grade year (March 2009). To resolve the dispute, the parties agreed to share the cost of an independent evaluation by Lorna Kaufman, Ph.D. Dr. Kaufman found that the student was reading below grade level and required increased services. Hingham adopted many of Dr. Kaufman’s recommendations.

In the first few months of the fourth grade year the team met twice to review the results of a private speech language evaluation and an observation by Dr. Kaufman. Hingham proposed and revised a new IEP with additional services which was fully accepted by parents in November 2009. This and the fact that Hingham had taken into account these independent assessments led the hearing officer to deny parents’ claims for compensatory relief relative to services provided before the Landmark placement.

Student’s mother testified that although the fourth grade year began well, he began deteriorating emotionally, referring to himself as the “dumbest” kid in the class. The mother was also shocked to learn that the student was not included in social studies or science classes, and that his work output was significantly less than other students and often “scribed” by school personnel. At the end of the fourth grade year, parents pressed for student’s placement in a substantially separate, language based program. It was undisputed that Hingham had no such program. Parents unilaterally placed the student at Landmark in September 2010, the student’s fifth grade year. Hingham proposed an inclusion program with significant supports and pull out services.

The lines of dispute were clearly delineated in the case—whether or not the student was making effective progress and would continue to do so in Hingham’s inclusion model. As is often the case, the matter boiled down to a battle of the experts.

What is most significant about the hearing officer’s comparison of the experts’ opinions, is his willingness to delve beneath broad assessments of how many grade levels the student was behind in reading or had gained, etc. Instead, this hearing officer examined more focused assessments of certain deficits and weighed the utility of various test instruments.

For example, one of the parents’ experts, Kira Armstrong, Ph.D. argued that the student had not made sufficient progress in decoding skills. This was manifest in a comparison of two years worth of Woodcock Reading Mastery Test scores which measured the student’s ability to utilize decoding strategies for purposes of reading novel words. This specific skill development, Dr. Armstrong argued, was central to student making effective progress toward becoming an independent reader. In this area, the student had actually regressed over the year. Similarly, the Gray Oral Reading Test (“GORT”) scores, which measure reading rate, fluency, accuracy and comprehension, while not demonstrating regression, indicated a widening gap between the student’s skills in this area and those of his peers. Other focused measures, such as the Test of Written Language showed that the student’s written expression had not improved. As a result, parents’ experts testified that there was a “real risk” that the student would become increasingly disengaged from the learning process and withdraw from school.

Hingham’s testing showed that the student consistently scored within the average range and appeared to be a relatively normal reader. Hingham’s MacMillan McGraw Hill test, a multiple choice test, showed reading comprehension improvement from eighty percent to ninety-four percent during his fourth grade year. Similarly, the Hingham-administered Dynamic Indicator of Basic Skills (DIBELS) showed improvement in his rate of reading over the same time period.

The hearing officer endorsed the parents’ experts’ discrediting of Hingham’s “informal testing.” The use of multiple choice formats enabled the student to compensate for his continued reading deficits by using his intelligence to gain information from the reading comprehension sections and make choices.

The hearing officer also credited the parents’ expert Dr. Kaufman because of her vast experience, including substantial work in academia and consulting with public schools. In addition, the hearing officer was impressed by Dr. Kaufman having spent eight years as the teacher in charge of a learning disabilities mainstreaming program within the Cambridge Public Schools. Dr. Kaufman also had previously supported the student’s placement in the inclusion model. Notably, the fact that the parents’ experts gave credit where credit was due, commenting on the “impressive” parts of Hingham’s program and even offering suggestions about how to do their inclusion model better, only served to bolster their credibility.

The hearing officer also found that the overwhelming weight of the evidence supported the finding that Landmark’s program was appropriate. Therefore, the hearing officer ordered reimbursement for, and prospective placement at, Landmark.

Another hearing officer decided two Landmark School cases within three days of each other with essentially opposite results, Pentucket Regional School District, BSEA #11-5530, 17 MSER 150 (2011) and Wellesley Public Schools, BSEA #10-6553 and 10-8510, 17 MSER 161 (2011).

Pentucket involved a student who, prior to his unilateral placement at Landmark, had never been enrolled in public school. He began Landmark in his fifth grade year and was in his seventh grade there at the time of the hearing. Private testing revealed that the student was devoting much of his cognitive resources to lower level, more mechanical tasks for both reading and writing. Many of these scores, similar to the “informal testing” in the Hinghamcase above, fell in the average to above average range. Certain refined testing revealed more concerning deficits. For example, the Reading Fluency Indicator test showed that the student was able to read a fourth grade level list of works well enough to measure his fluency at the fourth grade level. However, when correctly-read words per minute were factored in, his scores fell solidly within the second grade range. Later testing showed similar deficits in significant areas.

Pentucket proposed a language based program for the student for the first time for the 2010-2011 school year, the student’s seventh grade year. The parents kept the student enrolled in Landmark and sought reimbursement for his past attendance there as well as funding going forward.

In judging the appropriateness of Pentucket’s inclusion IEP for the February 2009 to September 2009 time period, the hearing officer restated the well established principle that an IEP is a “snapshot.” In that regard, the IEP must take into account what was, and was not, objectively reasonable when the snapshot was taken and the IEP developed. The previous IEPs were held not to have been reasonably calculated to provide the student with FAPE in the least restrictive environment. Pentucket had sufficient knowledge at the time of those IEPs of the student’s weaknesses and needs, and those weaknesses and needs established that he required a language based program. Pentucket did not challenge the appropriateness of Landmark’s program. Because parents did not provide notice of the unilateral placement to Pentucket until after he was enrolled at Landmark, Pentucket was ordered to reimburse the parents for the cost of Landmark beginning 10 business days after the placement there.

The September 2009 to February 2010 IEP called for placement in the Bagnell Elementary School language based program. However, that IEP was deficient because of its vague, general and lack of measurable goals and objectives. It omitted certain crucial goals, such as written expression goals and failed to contain specific and measurable goals in reading and language arts. Because special education law clearly requires a school district to develop an IEP that contains measurable goals and addresses all areas of need, the proposed IEP was deficient. Reimbursement for the costs of Landmark was ordered for that IEP period.

The August 2010 to April 2011 IEP called for student’s placement in a language based program but at the middle school program. This IEP was found to contain appropriate and detailed goals in all areas of the student’s needs. The parents’ attack on the middle school language based program was doomed by the fact that none of the parents’ experts or the student’s private evaluators ever observed the middle school language based program. As we have frequently pointed out in these commentaries, a parents’ claim for funding an outside placement has no chance of success without the parents’ establishing the inadequacy of the program proposed by the public school. That task is often more difficult without an observation of the proposed program. It was no surprise, accordingly, to see the parents’ claim for reimbursement for Landmark during this last IEP period denied.

The student in Wellesley was unilaterally placed at Landmark in August 2009, the beginning of his fourth grade year. Prior to that, he was enrolled in Wellesley’s Primary Language Program (“PSP”) for two years. The PSP program was designed for students with average cognitive abilities who have language based learning disabilities. Literary and math instruction was provided in small group or individual settings. PSP staff accompanied students in their inclusion classes.

Whereas the hearing officer in Hingham found that the parent’s experts’ positive comments on the public school program bolstered their credibility, this hearing officer found that earlier positive comments undercut the later opinion of the parent’s experts criticizing the district’s program. The hearing officer referred numerous times to the compliments paid to the PSP program by the student’s mother and expert. For example, the hearing officer found that the reading specialist privately engaged by the family to provide tutoring gave confusing and contradictory testimony. For example, she testified about the concerns she had for the student’s reading program and progress while she had noted in her May 2007 letter supporting the student’s application to the Carroll School that the student had made progress in reading during the year and his literacy skills had recently jumped. She also stated that the student had made a “significant gain” in reading as of January 2009. Similarly, the hearing officer quoted from a February 12, 2009 “thank you note” from the parents to PSP staff for their efforts and the student’s progress.

Taking such statements out of context will only serve to make private evaluators and parents reluctant to give credit where it is due or take a balanced view for fear that positive statements about a school’s program might be used against them someday. This will only result in parents and evaluators being more critical of public school programs or grudging in their acknowledgement of accomplishments.

The hearing officer found that Wellesley had adjusted the student’s IEP as new information became available. She credited the testimony of Wellesley personnel that the student made progress during his second grade year in the PSP program. This was measured by such things as his progress in Wilson reading levels.

In addition, no expert testified that the student required an outside placement for the 2009-2010 school year. According to the hearing officer, there was a lack of evidence that the student would have failed to have made effective progress in the Wellesley program.

Wellesley increased the services in the 2010-2011 IEP. They considered information from Landmark and proposed that the student be placed in the ISP program, which was very similar to the PSP program.

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