Overview

Commentary on Massachusetts Special Education Decisions: 3rd Quarter, 2010, by Joseph B. Green, Eileen M. Hagerty, Michelle A. Moor:

July 03, 2010

Introduction

During the third quarter of 2010, the BSEA conducted seven hearings involving disputes over the appropriate placements for students. Parents lost every time. In another case, parents lost in an attempt to get a 1:1 aide for their child in an in-district program. Several of the themes that emerge from these cases are the ones we discuss in every Commentary: (1) key evaluators need to testify, at least by telephone, because submitting reports is not enough; and (2) in challenging a placement that the student has not yet tried, it is not enough to show that the student has not made progress in the previous programs provided by district; parents must also have experts observe the newly proposed program and explain why that program is not appropriate. Parents were represented by an attorney in only one of the placement cases. Lay advocates represented the parents in some of the cases.

The remaining cases on which we comment fall into several categories. One concerned a manifestation determination (Westford). In two, the hearing officers granted substituted consent to the district’s re-evaluation proposals, allowing the districts to evaluate the students over the parents’ objections (Lincoln-Sudbury and Lowell). In two other cases, the BSEA considered issues relating to extended evaluations and home services, where the students had been out of school for considerable periods of time (Middleboro andLudlow). Students’ stay-put rights were at issue in two more cases (Uxbridge andConcord). In another case, the hearing officer considered the effect of IDEA’s statute of limitations and notice requirements on the parents’ claims for reimbursement for a unilateral placement (Danvers). The issue of BSEA jurisdiction over settlement agreements reappeared (Monson). Lastly, the hearing officer explained a district’s obligation to comply with a BSEA order requiring reimbursement, even if the hearing officer’s order is for reimbursement only, regardless of whether the district appeals to federal court (Sudbury).

Parents’ Key Experts Must Testify, Not Just Submit Reports, In Order For Parents To Prevail In Securing An Out Of District Placement

Medford Public Schools, BSEA #10-6403, 16 MSER 289 (2010) (Scannell)

In this case Parents, represented by an advocate, sought a private placement at Landmark for their son’s eighth grade year (2010- 2011 school year). In sixth grade (2008-2009 school year), Parents had become concerned about Student’s academic progress and had him evaluated. The neuropsychological evaluation diagnosed Student with a language-based learning disability, executive functioning deficits, and attentional weaknesses. After Medford conducted its own evaluations, Student was found eligible for special education.

 

Medford offered Student an IEP that called for a full inclusion placement, Wilson reading support, speech-language support, and assisted study support. For the remainder of sixth grade, Medford staff regularly reported that Student was making measurable gains towards his IEP goals. During seventh grade (2009- 2010 school year), Student’s teachers and service providers continued to report that he was making progress toward his IEP goals.

In January of Student’s seventh grade year, Parents had Student re-evaluated. Comparing Student’s scores from the 2008 evaluation revealed gains in some areas, but some of Student’s test scores had declined. There was a “significant drop” in Student’s reading comprehension skills and “limited” progress in written language skills. The neuropsychologist recommended that Student be placed in a substantially separate language-based classroom.

Medford, however, maintained that the Student was making effective progress and proposed an IEP for eighth grade that offered Student a full inclusion placement with special education support in math, science, social studies, and English Language Arts. Parents rejected the proposed IEP, and requested that the BSEA order the district to place Student at Landmark.

At the BSEA hearing, Parents testified that Student was struggling academically and emotionally, that he could not read for pleasure, and that they were concerned because their son was losing his desire to learn. Student’s therapist testified that Student felt frustrated with school. A learning specialist who worked with the second neuropsychologist testified that she agreed with the neuropsychologist’s findings and conclusion that Student required a more intensive language-based program. Neither the neuropsychologist who did the evaluation in 2008 nor the neuropsychologist from 2010 testified at the hearing, nor did the parents present testimony from any expert who had observed Student’s current or proposed program. Medford presented testimony from Student’s teachers and service providers that Student was making progress in many areas.

The Hearing Officer found that the Parents failed to meet their burden of proving that the eighth grade IEP was inappropriate. She noted that, while Parents relied on the evaluations by the two independent neuropsychologists, neither was called as a witness. Thus, even though some of Student’s scores declined between 2008 and 2010, Parents needed expert testimony to explain these results and to refute the criticisms and explanations offered by Medford’s witnesses. The Hearing Officer also noted that the learning specialist’s testimony was not persuasive that Student required a Landmark placement because that witness had never directly evaluated Student, had not observed his program, and had not spoken with Medford’s staff about Student’s progress. As for the therapist’s testimony, the Hearing Officer credited the testimony, but noted that it did not bear directly on the question of whether Student required a different educational placement or whether Landmark would be appropriate. Parents simply did not offer adequate expert testimony or other evidence to prove that Student’s program in Medford was inappropriate.

Comment: While the parents in Medford did present evidence from a therapist and an educational consultant, they failed to have an expert withdirect knowledge of the Student’s educational needs and programming testify on their behalf. Experts who have personally evaluated a child and have personally observed a program are far more credible than the testimony of an expert who has interpreted the reports of another evaluator and who has not observed the program.

Proving Lack Of Effective Progress In A Prior Year May Not Be Enough To Win An Out Of District Placement

Walpole Public Schools, BSEA # 10-5058, 16 MSER 277 (2010) (Oliver)

The parents in this case requested the BSEA to order the district to place their daughter in the Language Enhancement Program at the South Shore Educational Collaborative (“SSEC”) for the eighth grade. The Parents, through their advocate, presented evidence during the hearing that Student had not made progress in Walpole’s program during sixth grade (the 2008-2009 school year). An independent neuropsychologist testified that Student’s academic skills had dropped significantly between fifth and sixth grades. By the end of sixth grade, Student’s word reading was at a 1.8 grade level, her math skills were at an early second grade level, and her written language skills were at a 2.5 grade level.

When the Team convened to discuss the evaluation, Walpole proposed increasing Student’s math and English support for the remainder of sixth grade, and then transferring Student to a different middle school for seventh grade (2009-2010 school year) so that she could be placed in Walpole’s Language Inclusion Program (LIP). LIP is led by a certified special education teacher who had previously taught at the Carroll School for ten years and is certified in both the Orton-Gillingham and Project Read methodologies. Both aides in the LIP classroom had been trained by the lead teacher on how to deliver specialized language-based instruction.

Student attended the LIP program during seventh grade. She received language-based instruction for math, reading, and language arts in small classes and was mainstreamed for social studies and science with the support of a dedicated aide. In addition, Student received 1:1 reading tutorials from a reading specialist trained in the Wilson Reading Program, daily occupational therapy, emotional support from the school adjustment counselor, and extended year programming, as well as medical support from the school nurse.

During the fall of seventh grade, Walpole hired a clinical psychologist to observe Student on three separate occasions in order to better understand Student’s needs. The psychologist noticed during these observations that Student tended to gaze off and had diminished memory skills, even losing previously acquired skills. Based on the psychologist’s recommendations, Walpole advised the Parents to seek a neurological evaluation to determine if Student was suffering from any underlying medical conditions.

As a result of Walpole’s recommendation, Parents brought Student to a pediatric epilepsy specialist at Massachusetts General Hospital, for an evaluation in December 2009. This physician concluded that Student was suffering from an underlying seizure disorder that caused abnormal brain activity, which in turn impacted Student’s ability to learn and maintain attention, as well as impacting her executive functioning, working memory, academic skills, and mood. Walpole then developed a seizure protocol for student and regularly convened the Team to discuss adjustments to Student’s program.

Despite Walpole’s efforts to support Student, Parents believed that Student was not making progress in the district and that she required a placement in the language-based program offered at the SSEC. They filed a hearing request in the spring of 2010 seeking a SSEC placement for eighth grade (2010-2011 school year).

The Hearing Officer concluded that Parents did not meet their burden of demonstrating that Walpole’s proposed IEP was not likely to be appropriate for the Student. In his decision, the Hearing Officer meticulously detailed the evidence presented during the hearing. He credited Walpole for acting “professionally, reasonably and proactively” during Student’s sixth and seventh grade years. In particular, the Hearing Officer praised Walpole for frequently convening the Team to discuss Student’s needs, securing services from an outside consultant, and frequently modifying and adding to Student’s IEP to address her changing needs. The Hearing Officer also commended the lead teacher of LIP for documenting her daily observations of Student, and for identifying Student’s memory loss and loss of acquired skills, which in turn led to Student’s seizure disorder diagnosis. The Hearing Officer also found that Walpole had appropriately provided Student medical support for her seizure disorder and emotional support as Student learned to cope with the effects of this condition.

On the other hand, the Parents did not present evidence that Student had failed to make progress in the LIP program during seventh grade or that any variability in Student’s academic skills was the result of her educational programming rather than the unfortunate effect of her underlying seizure disorder. Accordingly, the Hearing Officer concluded that the parents had not proved that Walpole’s proposed IEP was inappropriate.

Comment: Parents’ case for an out of district placement for eighth grade lacked some key fundamentals: parents had no expert testimony, no observation reports, and no current evaluations reflecting Student’s progress (or lack thereof) in the seventh grade program, and no testimony, based on observations of the program or the student’s profile, about why the proposed eighth grade program would not be appropriate to meet Student’s needs. Instead, Parents relied on evidence showing that Student had not made progress during sixth grade even though that IEP was not in dispute. As will be seen in the Pembroke decision discussed below, this approach is not sufficient to prove a district’s inability to provide an appropriate placement. Parents must present evidence regarding the program that is currently in dispute. Parents also failed to refute the school psychologist’s assertions that it was primarily the Student’s seizure activity that impacted her ability to make academic progress and that until Student’s seizure condition is under control, Student would continue to experience only variable gains in the classroom regardless of her academic programming. If anything, Parents’ own expert seemed to reinforce the school psychologist’s testimony and agreed that Student’s learning is and would be adversely impacted by her seizure disorder. The Hearing Officer sympathized with the family and noted that until the Student’s seizure disorder stabilized, her learning would be compromised. However, he concluded that “a change in educational placement is not going to alter that reality.”

Even Proving “Abysmal” Progress May Not Be Enough To Obtain A Private Placement

Pembroke Public Schools, BSEA # 10-1097, 16 MSER 281 (2010) (Berman)

Perhaps there is no better decision than Pembroke to illustrate how difficult it can be for parents to prevail at the BSEA. The Hearing Officer found that the student’s progress in the district’s programs had been “abysmal,” but she still did not order a change in placement. In this case, the Parent filed a hearing request pro se, alleging that Pembroke’s IEP for sixth grade was not appropriate and seeking an out of district placement at the Beal Street Academy for her severely dyslexic son.

There was no disagreement among the parties that Student presented with a significant language-based learning disability that impairs his receptive and expressive abilities, including understanding verbal information, reading, writing and spelling. Student had also been diagnosed with an auditory processing disorder. These disabilities have interfered with Student’s ability to make progress commensurate with his age and cognitive potential, despite considerable effort by Student to succeed at school.

By fourth grade (2007-2008 school year), Parent and Pembroke were in agreement that Student had made only “minimal” progress in gaining basic literacy skills. After a neuropsychologist, selected by agreement between the district and the parents, performed an evaluation, the Team proposed an IEP for the remainder of fourth grade and most of fifth grade that offered several accommodations, two hours of inclusion support per week, and a substantial increase in speech-language services, reading support, written language and academic support, and extended year services. Parent accepted that IEP.

In the fall of fifth grade (2008-2009 school year), Pembroke completed Student’s triennial re-evaluation. Student’s scores on many assessments again revealed substantial weaknesses in most language-based skills, and confirmed that Student was still reading at a first grade level. Pembroke proposed a new IEP that increased Student’s accommodations and offered a modified curriculum, as well as services similar to what Student had received in fourth grade. Parent rejected the IEP.

During the summer before sixth grade (2009-2010 school year), the same neuropsychologist re-evaluated the Student and concluded that the Student continued to present with working memory and phonological processing skills that fell well below age expectations. Student’s reading skills were at a second grade level, and his GORT scores remained in the first percentile despite his average overall cognitive abilities. The evaluator concluded that Student has dyslexia characterized by poor phonological processing and a broader language disorder. He recommended that Student be placed in a small, substantially separate language-based classroom designed to meet the needs of students with dyslexia, rather than in a program offering Student isolated language support during the day, as Pembroke was doing.

This time Pembroke disagreed with the recommendation of the agreed-upon evaluator and instead offered Student mainstream support for math, science and social studies, a language-based classroom for ELA, reading fluency instruction using a phonics-based program, speech-language therapy three times per week, and the same types of accommodations offered to Student in prior IEPs.

Parent rejected the IEP during the fall of Student’s sixth grade year, and requested that Pembroke place Student in a private day school. Pembroke declined Parent’s request and stated that it was “thrilled” with the progress Student had been making in the beginning of sixth grade. Parent then filed a hearing request seeking a placement for Student in the language-based program offered at Beal Street Academy.

In November of 2009, Student’s Developmental/Behavioral Pediatrician, who had seen Student several times over many years, wrote a letter informing the Team that Student reported he received so many accommodations that he no longer needed to do very much work on his own in Pembroke. For example, the doctor reported that Pembroke provided Student with “pre-written correct answers” to his homework so that he would not need to do any writing. She concurred with the neuropsychologist that Student required a specialized language-based program.

The parties attended mediation at the BSEA, resulting in an agreement to have the neuropsychologist observe Student in his classes to determine whether Student’s current program was appropriate to meet his needs. However, after the mediation the parties learned that the neuropsychologist was unavailable, so Pembroke arranged to have its former school psychologist conduct the observation (Parent strenuously objected to Pembroke’s decision to use a former employee to assess the appropriateness of the program). The former school psychologist concluded that Pembroke’s sixth grade program was benefitting Student and that it incorporated most of the neuropsychologist’s recommendations.

The Hearing Officer found the “evidence overwhelming that [Student’s] progress in reading, up to the beginning of the 2009- 2010 school year has been abysmal by any objective measure,” However, the Hearing Officer found that Parent nonetheless could not prevail because she failed to provide sufficient evidence that Student would not have been able to make progress during sixth grade (2009-2010). Accordingly, even though Pembroke did not provide convincing evidence about Student’s likely progress in sixth grade, Pembroke won “by default” because the parents did not present evidence specifically about deficiencies in the proposed program. We question this result. As another hearing officer has stated, “There is no ‘default’ setting under the IDEA or Massachusetts special education law.” Duxbury Public Schools, BSEA #09-0295, 15 MSER 34 (2009). The Hearing Officer had the power, and perhaps the obligation, to obtain further information on which she could make a substantive decision about the student’s placement for sixth grade. See, e.g., Duxbury Public Schools, BSEA #09-0295, 14 MSER 398 (2008), 15 MSER 34 (2009); 20 U.S.C. §1415((f)(3)(E)(i). 603 CMR 28.08(5)(c); BSEA Rule X(B).

Comment: As this case amply shows, parents cannot rely only on a student’s lack of progress during prior years when trying a case at the BSEA. They must produce evidence and expert testimony about every IEP in dispute. The pro se parent in this case produced evidence that Student was receiving pre-written correct answers to homework during sixth grade, that Pembroke’s program was not a comprehensive substantially separate program as the evaluator had recommended, and that Student had made “abysmal” progress under Pembroke’s educational planning efforts. Furthermore, the sixth grade program did not seem significantly different from the previous programs, which had resulted in “abysmal” progress. We believe that, on these facts, the Hearing Officer could have concluded that Pembroke’s current IEP was inappropriate and that Student required placement in an intensive language-based program. Alternatively, the Hearing Officer could have kept the case open and ordered the parties to obtain further information from other sources, such as an agreed-upon independent evaluator.

Parents’ Request For An Out Of District Placement Defeated When District Proposes A New In-District Placement

Georgetown Public Schools, BSEA # 11-0291, 16 MSER 341 (2010) (Crane)

In Georgetown, Parents sought an out of district placement. At the time of the hearing Student was four years old and had been diagnosed with Chromosome 15q Duplication Syndrome, an extremely rare disorder that causes global developmental delay/ PDD-NOS, and a range of deficits common to children on the autism spectrum. Student also suffered from a seizure disorder and was prone to choking. Independent evaluators confirmed that Student presented with PDD-NOS, attention deficits, difficulties with social interaction, and motor skill weakness.

Student’s placement was in an integrated pre-school program that provided for individual instruction each afternoon, support from a 1:1 aide or other adult trained in CPR and the Heimlich maneuver throughout the day, related services (e.g., occupational therapy, speech-language therapy, and physical therapy), home- based services, and extended year services. In March 2010, Parents arranged for an educational consultant to observe student in the district’s program. At the Team meeting convened to discuss the independent evaluations and the classroom observation, the neuropsychologist and the educational consultant told the Team that the Student required a program that utilized ABA methodology and that ABA principles should be integrated into Student’s IEP. There was disagreement during the meeting about whether or not Student had been making progress, and the meeting ended before the Team was able to discuss Student’s placement. Georgetown issued an IEP after the Team meeting. Parents did not respond to the IEP directly and instead requested a hearing at the BSEA alleging Student’s IEP was inappropriate and requesting an out-of-district placement.

The Team reconvened on May 27, 2010 to discuss Student’s placement. During the “contentious” meeting, Parents represented to the Team that Student had suffered a significant head injury as a result of falling off a bean bag chair at school. When Georgetown requested copies of Student’s medical records, Parents indicated they were not willing to provide these records and were not willing to continue trying to work out their disagreement with Georgetown informally. As a result of the Parents’ decision to end the meeting, the Team did not discuss Student’s placement.

After the Team meeting, Georgetown retained a consultant to develop an individual safety plan for Student. The consultant developed a safety plan that included, in part, the use of a helmet to avoid future head injuries.

Georgetown had been developing a substantially separate program called the Transitions Classroom with the help of an outside consultant. When the Transitions classroom opened in the fall of 2010, it had a total of six students with substantial cognitive and learning limitations, five aides, and one teacher. By the time of the hearing in September 2010, Georgetown had formally proposed to place Student in the Transitions Classroom and to provide him with daily opportunities to participate in the integrated pre-school classroom with a 1:1 aide.

The Hearing Officer found that Parents had successfully demonstrated, in large part through the testimony of their educational consultant who had observed the student in the classroom in March 2010, that the IEP had not been appropriate to meet Student’s needs because it did not require the implementation of an individualized ABA-based program. The Hearing Officer found that the Parents had been justified in rejecting the proposed IEP in March.

However, the Hearing Officer also found that Georgetown could correct the deficiencies in the proposed IEP by redrafting it to incorporate ABA principles and by offering Student a placement in the newly developed ABA-based Transitions classroom for the 2010-2011 school year. The Hearing Officer noted that the Transitions classroom incorporated many of the recommendations of parents’ educational consultant, including a very low teacher- student ratio, using an ABA-based approach to address Student’s individual needs, hiring an ABA consultant to oversee the program, hiring an in-district BCBA to also consult for the program, and providing Student with opportunities for inclusion.

The Hearing Officer next turned to Parents’ claims for compensatory relief for the period between May 10, 2010 (the date they removed Student from school) and the end of the academic year. He noted that it was “not disputed that Student made no progress over the course of the 2009-2010 school year with respect to his aberrant behaviors.” Further, Student received no ABA-based programming during the 2009-2010 school year and the toileting program Georgetown had implemented was also not successful. However, the Hearing Officer found that Georgetown staff testified credibly that it was not in Student’s best interest to shift him into a new program late in the school year. He also found Georgetown presented persuasive evidence that Student had made progress during the 2009-2010 school year in some areas such as social skill development, language skills, as well as during his physical and occupational therapies. The Hearing Officer further noted that Parents’ classroom observer had not recommended that Student be moved into a different program at that time. The Hearing Officer found “that Student’s proposed IEP for the period from May 10, 2010 to the end of the academic year, although deficient in certain discrete areas, would have allowed Student to make substantial progress in many areas addressed by his IEP and would have allowed somewhat greater progress if the Parents had accepted certain methodologies and otherwise cooperated with Georgetown.” For these reasons, the Hearing Officer denied Parents’ claim for compensatory services. The Hearing Officer also commented that while Student’s placement had not been discussed by the Team, the Parents themselves were partly to blame by virtue of their decision to end the May Team meeting before a discussion could occur.

Comment: This case shows again that Parents must have someone observe the program being proposed in a new IEP, not just the program from the previous IEP. Without that observation, Parents could not prove that the new (2010-2011) placement was not appropriate. With regard to the 2009-2010 placement, we believe that because the IEP was found to be inappropriate, some form of compensatory relief (even if not a change to a different program) should have been awarded in order to compensate the student for the district’s denial of FAPE.

District Prevails In Forcing Out Of District Placement When Parents Want To Remain In The District

Amherst-Pelham Regional School District, BSEA # 10-8888, 16 MSER 355 (2010) (Crane)

In Amherst-Pelham, there was no dispute that the 13-year-old autistic student possessed “good” cognitive potential but had significant communication difficulties and had only acquired pre- elementary level academic skills and pre-literacy skills. Student also had substantial behavioral needs, which at times placed the safety of Student and those around him at risk. Student was placed in a substantially separate program in the district where he received all of his academic instruction and services outside of the mainstream classroom. Student initially was also provided with inclusion opportunities during gym, chorus, and the general advisory session of the day. At Parent’s request, however, Student only attended school for two and half hours per day.

Amherst-Pelham assigned two staff to attend to Student at the beginning of the year. Unfortunately, it quickly became apparent that the two staff members could not stop or contain Student’s behaviors due to his large size, and the district hired a larger male aide who was experienced in managing students with behavioral issues. Even with this experienced aide, and another adult supervising Student at all times, Student still required the use of a “tether” during the day to prevent bolting. The tether was a yellow cord that tied around Student’s waist and was held by a staff member.

Student was very compulsive and would grab and gather objects that were within his reach. He tended to bite, bolt, and shout at others. Due to Student’s behavioral issues and overall social skill deficits, Student was not able to interact appropriately with peers during the day. Amherst-Pelham staff were also concerned that Student’s tether served to further stigmatize him and did not serve to promote inclusion.

The Team convened in December 2009 to discuss Student’s progress and the results of the district’s evaluations. Amherst- Pelham recommended at the meeting that Student be placed in an out of district ABA-based program that offered specialized instruction designed to meet Student’s needs. Parent rejected Amherst-Pelham’s proposed IEP.

Student’s behaviors improved somewhat during the spring of 2010. He was able to participate routinely in his substantially separate program and was eventually re-introduced into the inclusion gym class as he became more comfortable near peers. Despite these positive developments, Student still required the tether and had to be accompanied by two staff at all times, and he continued to engage in inappropriate behaviors such as occasional biting, yelling, and stomping. Amherst-Pelham proposed to increase the length of Student’s day and provide Student with more than two and a half hours of programming, but Parent refused this request.

Amherst-Pelham filed a hearing request at the end of the year seeking placement for Student in a private ABA-based program for the 2010-2011 school year. The pro seParent maintained that Student had the right to attend school within his own community and that Student had made effective progress in his current educational program and therefore did not require a different school.

The Hearing Officer concluded that Amherst-Pelham met its burden of demonstrating that Student required a more restrictive, out of district ABA-based program in order to make effective progress. Specifically, the Hearing Officer found that there were significant concerns about Student’s behaviors, such as bolting, causing injury to others, and engaging in self-injurious activity. The Hearing Officer also found that Student, while possessing good cognitive potential, had developed minimal academic skills and was not able to make effective progress in the district’s program. He further found that Student does not possess an adequate communication system and requires immediate and intensive speech-language intervention. Based on these findings, the Hearing Officer concluded that Student’s behavioral, academic and communication needs necessitated an out-of-district placement in an ABA-based program.

Comment: There are not many cases at the BSEA where the District is seeking an out-of-district placement against the wishes of the parents, but they do appear every so often. In this case, it appears that the District had good grounds for doing so and that the Hearing Officer correctly ordered such a placement. We note that the pro se parent did not present the testimony of any independent expert. If there had been expert support for her position, the result of this case might have been different.

Parents Fail To Prove The Need For Placement In A Substantially Separate Classroom

Lynn Public Schools, BSEA #10-3947, 16 MSER 316 (2010) (Berman)

Student in this case was a six-year-old first grader, autistic but high-functioning with “superior” or “very superior” academic skills, and with weaknesses in expressive and receptive language, social skills, and adaptive life skills.

Parents and Student moved to Lynn from another state shortly before Student’s kindergarten year (2009-2010 school year). When school began in the fall, Lynn attempted to implement the IEP Student had received from out-of-state. Because that IEP called for an integrated program, Lynn placed Student in its integrated kindergarten program, which was designed to serve students with autism and other disabilities within inclusion settings. Lynn’s integrated classroom served 22 Students from kindergarten through third grade, 7 of whom had IEPs.

Lynn conducted several evaluations of Student during the fall. Lynn’s psychologist found that Student presented with extremely strong academic skills, but struggled with social skills and nonverbal behaviors. The district’s psychologist recommended placing Student in a small, highly structured, substantially separate classroom with similar peers, and providing Student with social skills instruction as well as opportunities to interact with typically developing peers.

Despite the recommendation of the district’s own psychologist to the contrary, the district members of the Team proposed to continue Student’s placement in the integrated classroom. Parents did not want Student to remain in the integrated program because they believed that Student’s behavior had “dramatically regressed” since he began attending school in Lynn. They were concerned that Student was the target of bullying and expressed concern that the large integrated kindergarten classroom contributed to Student’s attention problems.

In response to Parents’ concerns about Student’s behaviors, Lynn retained a behavioral consultant. The consultant observed Student in school and at home and reviewed parent and teacher responses to questionnaires about Student’s behavior. She reported that Student’s adaptive skills were generally in the low range in school and slightly improved at home. The consultant also reported that Student’s problematic behaviors were mostly rated by parents and teacher as “mild” or “moderate,” and that Student responded well to redirection. The consultant made various recommendations concerning Student’s social skill instruction and suggested that Student’s IEP be amended to incorporate a goal for attention, persistence and compliance. She concluded that Student did not require a Functional Behavioral Assessment or home services. Student’s service providers and teachers reported that Student was happy at school and was making gains towards his IEP goals.

When Lynn scheduled a Team meeting to discuss the report, Parents cancelled the meeting and filed a hearing request, alleging that Lynn’s proposed IEP and placement were inadequate to meet Student’s needs and that the district had committed various procedural violations.

An independent evaluator reported that Student’s performance was consistent with high-functioning autism and that Student met the criteria for a Learning Disability-NOS based on his difficulties with writing. She recommended Student be placed for part of his day in a substantially separate language-based classroom that was taught by a teacher trained in working with students who have autism spectrum disorders and language disorders and that was overseen by a professional with ABA expertise. She further noted that if Lynn did not offer such a program, Student should be placed in a private program and provided with mainstreaming opportunities after school. She also recommended that Student receive a Functional Behavioral Assessment. She did not conduct any observations of Student at Lynn or speak with his teachers directly (though she did ask his teachers to complete questionnaires).

Lynn retained another consultant, who observed Student in his integrated classroom, reviewed the independent evaluator’s report, met with Student’s teachers, and discussed Student’s needs with the first consultant. He concluded that Student should remain in an integrated classroom with typical peers.

Lynn scheduled another Team meeting to consider all the evaluations and observations. Parents did not attend the meeting. The Team, without the parents, developed an IEP that called for an integrated placement for the remainder of kindergarten and for first grade. The new IEP incorporated many of the evaluators’ suggestions, including offering Student structured reading, math and writing programs, providing a Functional Behavioral Assessment and developing a behavior plan, providing more explicit social skill goals, offering a monthly meeting with the home consultant and Team members, and ensuring frequent assessment of Student’s academic progress.

The BSEA held a hearing in August 2010. Parents, represented by an advocate, did not present any expert witness testimony. Nor did they call the school psychologist who had recommended that Student be placed in a substantially separate classroom and whose report appeared to support their position. Instead, the Parents’ case primarily relied on their own testimony that Student had demonstrated physically aggressive behaviors at home, albeit sporadically, which they attributed to Student’s improper placement and the “hostile environment” created by Lynn.

The Hearing Officer concluded that Parents had failed to meet their burden of demonstrating that Lynn’s proposed IEP was inappropriate for the Student. She noted that Parents did not offer any evidence that Student had failed to make progress in his current educational program. Further, while the independent evaluator had recommended a different type of placement, there was no evidence that she had concluded that Student’s current placement was inappropriate or that Student had been unable to make meaningful gains during the year. The Hearing Officer noted that Lynn’s last proposed IEP incorporated numerous suggestions from all the evaluators, and it addressed Student’s potential behavioral needs both in school and at home.

The Hearing Officer also concluded that Parents failed to show that Lynn had created a hostile educational environment for Student. She noted that Parents’ use of the term “hostile educational environment” was somewhat confusing because the term has a specific legal meaning in gender-based discrimination claims brought under Title IX. In this case, Parents were not making a discrimination argument based on gender, but instead were alleging that Lynn’s actions were so hostile as to have interfered with Student’s ability to receive FAPE. The Hearing Officer found that Student had made meaningful progress at Lynn and therefore had not been denied FAPE. She also observed that there was no meaningful evidence to show that Lynn had acted in a hostile manner toward the Parents or Student.

The Hearing Officer did award Student three compensatory speech-language therapy sessions, as Lynn acknowledged during the hearing that it had not provided these sessions during the fall of 2009.

Commentary: Many parents refer to their children as being in a “hostile educational environment.” While there are certainly cases in which students have been discriminated against so pervasively due to their gender or disability that their educational environment has become “hostile,” typically parents must show that the discriminatory conduct reached the point of being “severe and pervasive” in order to obtain any relief as a result. In this case, the parents were clearly upset about their interactions with Lynn. However, a few isolated incidents with school officials will not support a claim against the school. The parents in this case also did not help their own cause by refusing to participate in Team meetings. Parents are expected to participate in the Team process and to show some flexibility. We also note, once again, that parents must have experts with direct knowledge of a student and direct knowledge about the student’s program testify at the hearing in order to prevail.

Contract Language Between Districts Prevents Out Of District Placement

Fairhaven Public Schools, BSEA # 10-6294, 16 MSER 265 (2010) (Oliver)

In this case parents, residents of Acushnet, wanted their 17-year- old autistic son to be placed at Fairhaven High School for his senior year, and they made it clear that Fairhaven was the only placement they would accept. Because Acushnet does not have a high school, the town has an agreement with Fairhaven and New Bedford to allow Acushnet students to attend high school in those towns if those towns have an appropriate program. This student had previously been placed at the Cape Cod Collaborative, but his parents had removed him from school when he turned sixteen and insisted that he attend public school in Fairhaven, as his sister had done. Acushnet presented evidence that the special education departments of both towns had reviewed Student’s records, considered all available programs in Fairhaven High School, and agreed that there was not an appropriate program available for this autistic student, who had deficiencies in self-help skills, social skills, developmental skills, academic skills, and communication skills. Parents apparently presented no evidence to the contrary, other than their own testimony. The Hearing Officer dismissed the parent’s request for a due process hearing after concluding that that under the plain terms of the agreement, Acushnet could not send, and Fairhaven was not required to accept, Student into a program at Fairhaven High School.

Parents Fail To Demonstrate Student Requires 1:1 Aide

Boston Public Schools, BSEA #10-2292, 16 MSER 313 (2010) (Oliver)

In this case Parent, acting pro se, did not dispute Boston’s proposed placement in a substantially separate program within Boston English High School for students with multiple disabilities. However, Parent argued that Student also required a 1:1 aide in order to receive a FAPE.

The parties did not dispute that the then fourteen-year-old Student has multiple disabilities, including Moderate Mental Retardation, Cerebral Dysfunction, Oppositional Defiant Disorder, Hyperactivity and Impulsivity, and Propionic Academia (a metabolic disorder that requires Student to be fed through a gastric tube). Student’s cognitive and behavioral skills are severely compromised as a result of these conditions. At the time of hearing she was reported to be functioning below a three year-old level in her daily living skills, gross motor and socialization skills.

Student’s program in Boston had a total of five students (including Student), one special education teacher, and two paraprofes- sionals. In addition, one of the students had a dedicated 1:1 aide. Boston testified that most of Student’s instruction occurred on a 1:1 or 1:2 basis and that Student was always accompanied by a teacher or paraprofessional during in-school transitions.

Despite the relatively high teacher-student ratio in the program, Parent maintained that Student required a dedicated 1:1 aide. Parent was particularly concerned because Student had a history of toileting accidents on the bus to and from school.

During the hearing Parent produced only two witnesses, herself and Student’s godmother. Both witnesses testified that Student has significant needs and requires a 1:1 monitor on the bus. Parent also entered into evidence letters from Student’s developmental-behavioral pediatricians supporting a 1:1 bus monitor for Student and observing that Student “may need” a 1:1 behavioral aide in the classroom.

Before the hearing Boston agreed to provide a 1:1 bus monitor. Thus, by the time of the BSEA hearing the only issue for the Hearing Officer to decide was whether Student required a 1:1 aide in the classroom.

The Hearing Officer concluded that Student did not require a dedicated 1:1 aide in the classroom. He noted that Parent did not provide testimony from any educators or evaluators recommending a dedicated aide. Further, Parent’s own testimony focused primarily on Student’s toileting needs to and from school, rather than concerns about Student’s support within the school setting. Finally, the Hearing Officer noted that with the high teacher-student ratio in Student’s program, Student already receives 1:1 support for most of her day.

Comment: The pro se Parent did not have any evaluators observe the Student’s program. She did not present testimony of any independent expert to explain why a 1:1 aide was needed in the classroom. The mother and godmother were the only witnesses who testified that Student needed a 1:1 aide in the classroom. In these circumstances, the result is not surprising.

Hearing Officer Refuses To Override Parents’ Lack Of Consent To The Sending Out Of Referral Packets, Where District Fails To Show Lack Of FAPE In Student’s Current Placement

Ralph C. Mahar Regional School District, BSEA # 10-7697, 16 MSER 263 (2010) (Putney-Yaceshyn)

A few months after the IEP had proposed and Parent had accepted a placement at Seven Hills (a day program) and at the Callan House (a residential program), the District’s Special Education Director requested consent from the parents to send referral packets to placements closer to the district. When the parents refused, the district filed for hearing, requesting that the BSEA provide “substitute consent” to send referral packets containing Student’s educational records to two collaborative programs. The Special Education Director stated that he felt it was important to determine whether there were in-district programs that would be better able to serve Student’s needs in a less restrictive environment. The student is non-verbal and presents with significant needs including autism, PDD-NOS, anxiety, and a medical condition known as Pica (this disorder causes persons to eat non-food items).

The Hearing Officer first determined that, without an express regulation governing the requirements needed to authorize substitute consent for referral packets, she would consider Mahar’s request using the legal framework governing consent to re-evaluation in the Massachusetts Special Education Regulations, 603 CMR 28.07(1)(b). This regulation states that if, “subsequent to initial evaluation and initial placement,” a school district “is unable to obtain parental consent to a reevaluation¼the school district shall consider whether such action will result in the denial of free appropriate public education to the student.” If after such consideration the school district determines the parent’s refusal will result in a denial of a free appropriate public education (“FAPE”), the school district may proceed to the BSEA and request relief.

Under this standard, the Hearing Officer quickly found that Mahar had not produced any evidence that Parent’s refusal to consent to the sending of referral packets had deprived Student of a FAPE. To the contrary, the Hearing Officer found that Student’s Team and service providers were in unanimous agreement that Student’s current educational program was appropriate and met his needs, and at least one of Student’s service providers voiced concern that Student’s negative behaviors would re-emerge if he left his current program. Further, Mahar introduced no evidence that there had been any change in circumstances since the last Team meeting that would justify overriding the Parent’s refusal to allow the sending of referral packets.

The Hearing Officer concluded by noting that the appropriate time for Mahar to have requested consent to send out referral packets or discuss a placement change was during the Student’s Team meeting. The fact that Mahar had a change of heart after proposing an IEP to Student does not “justify overriding a parent’s refusal to consent to the sending of referral packets when a student is placed in a program deemed appropriate by the Team pursuant to an unexpired accepted IEP.”

Comment: This case demonstrates that the appropriate time for school districts to consider new placement options for a student is during the process of developing an IEP and not after the IEP and placement have been accepted by the parent. This case also involved a particularly active special education administrator who appeared, on the facts presented, to be acting outside of the Team process. Teams, and not special education directors, should be making placement determinations. This decision helps to affirm the central role of the Team in developing a student’s educational program.

Causation And Credibility: Parents Fail To Prove Student’s Misconduct Was A Manifestation Of His Disability

Westford Public Schools, BSEA #10-6872, 16 MSER 257 (2010) (Scannell)

The sole disciplinary decision reported this quarter, Westford Public Schools, BSEA #10-6872, 16 MSER 257, concerns the degree of proof needed to overturn a district’s determination that a student’s misconduct is not a manifestation of his disability. Under 20 U.S.C. §1415(k)(1)(E)(i) and 34 C.F.R. §300.530(e), with certain exceptions not relevant here, a student who is eligible for special education may not be suspended for more than ten days in a school year if his misconduct was a manifestation of his or her disability. Conduct constitutes a manifestation if it “was caused by or had a direct and substantial relationship to the child’s disability,” or resulted from the district’s failure to implement the child’s IEP. In this case, the parents did not assert any failure to implement the IEP, so the case turned on whether the student’s disability had caused, or was directly and substantially related to, the misconduct. The hearing officer found no causal connection, and thus concluded that there was no manifestation.

On reading the decision, and without benefit of hearing the evidence, it appears that this case could have gone either way. The student was a bright 13-year-old seventh-grader with emotional impairments. He had been diagnosed with social anxiety, social phobia, and selective mutism. As the hearing officer described, the student “struggles significantly in his ability to develop and maintain satisfactory relationships with his peers, teachers and school staff,” and “exhibits difficulties with emotion regulation, anxiety and social pragmatics.” 16 MSER at 257. One evaluator, Westford’s school psychologist, concluded that the student “struggles significantly in his ability to build and maintain satisfactory relationships with peers and teachers” and “often demonstrates inappropriate types of behaviors and feelings under normal circumstances.” Id. at 259. It is worth noting that the school psychologist’s statements exactly track the definition of “emotional impairment” in 603 CMR 28.02(7)(f) (see also 34 C.F.R. §300.8(c)(4)(i)), and that the student had been found eligible for special education on the basis of emotional impairment.

The school knew that the student was often oppositional and that he could become verbally or physically aggressive. The parents reported that boredom was one of the likely triggers for concerning behavior. The student’s IEP included emotional and behavioral goals and a behavior plan. The latter targeted “aggression, disrespectful language, and physical aggression.” 16 MSER at 261.

The disciplinary dispute arose when it came to light that the student had compiled a list of names of Westford students, teachers, and staff, in connection with which another student said that he heard the word “shotgun.” On the other side of the list, the phrase “I am bored” was written more than fifty times. The hearing officer found that the list “was compiled when a fellow student urged [the student] to write the names of people he did not like, after she observed [the student’s] writing stating that he was bored,” and that several students had input to the list. 16 MSER at 261.

The district found that the student had violated the school’s handbook (the exact provision was not specified). A manifestation meeting was held, at which the district determined that the student’s misconduct was not a manifestation of his disability. A principal’s hearing took place immediately afterward. The principal suspended the student for the remainder of the school year.

Since the principal’s hearing took place on June 2, presumably there were only about three weeks left in the school year. The hearing took place on June 25, when the school year must have ended or been about to end, and the decision was issued on July 6. Although the decision does not so indicate, presumably the parents requested and received an expedited hearing pursuant to BSEA Rule II(C)(1)(a)(i). Even so, the decision came too late to have any practical effect on the student’s program.

At hearing, the parents as the party seeking relief had the burden of proving that the misconduct was a manifestation of the student’s disability. Numerous Westford witnesses testified; the parents, in addition to their own testimony, presented the testimony of their son’s treating psychiatrist. The hearing officer stated that the psychiatrist “testified in a general manner about selective mutism and the difficulties it presents for [the student],” but “could not credibly testify as to the relationship between [the student’s] conduct and his disabilities.” 16 MSER at 261. She also appeared to discredit the psychiatrist’s testimony because he does not provide therapy to the student, did not speak with the student’s therapist about the incident, did not speak with Westford about the incident, and had never observed the student in school. This is the type of preparation that one would expect from an independent evaluator serving as an expert witness in a placement dispute, for example, but it seems to be an unrealistic standard for a treating physician in the context of an expedited disciplinary hearing.

While the psychiatrist’s testimony may have lacked detail, it appears to this commentator that the hearing officer took an overly- narrow view both in defining the student’s misconduct and in applying the standard of 20 U.S.C. §1415(k)(1)(e)(i). On the first point, the hearing officer characterized the student’s writing of the list as being “different than conduct he had displayed in the past” because it “occurred in a social context with some involvement by other peers.” 16 MSER at 261. (Nowhere does the decision discuss the possibility that the peers, by egging the student on to create the list, might have been engaging in a form of bullying or harassment.) The hearing officer also stated that there had been no evidence of any precipitating event; she apparently discredited the parents’ testimony that boredom frequently triggered the student’s misbehavior. The hearing officer went on to state that the student’s “typical responses to triggering situations, namely nonresponsiveness and reactive verbal or physical aggression, were not noted during the event.” Id. She accepted the district’s characterization of the development of the list as “a unique behavior that school staff had not seen before.” Id. Presumably, however, verbal aggression—the making of a threat to harm others by shooting them—was exactly why the student was being disciplined, as the making of a list of names, in and of itself, would hardly violate a school’s code of conduct. Moreover, a manifestation cannot be limited to the types of misbehavior that are specified in an IEP or behavior plan. Even assuming that a specific behavior has not been observed in school before, that does not mean that it cannot be a new manifestation of the student’s existing disability. In this case, it would seem that the making of the list, coupled with a possible threat to harm those on the list, could have been seen as “inappropriate types of behavior under normal circumstances,” displaying “an inability to build or maintain satisfactory interpersonal relationships with peers and teachers”—two factors that the school psychologist herself stated that the student exhibited, and that are so directly and substantially related to emotional impairment as to form part of its legal definition.

As to the second point, the application of the standard for a causal or direct and substantial relationship between disability and misconduct under 20 U.S.C. §1415(k)(1)(e)(i), it appears that the hearing officer again took such a narrow view that it became almost impossible for the parents to show a relationship between the disability and the conduct. In support of her conclusion that no relationship existed, the hearing officer stated that there was no evidence either that the student “was unable to control his behavior in writing a list of names of people he did not like” or that he “was unable to appreciate the consequences of his behavior” because of his disabilities. 16 MSER at 261. The concepts of inability to control one’s behavior and inability to appreciate the consequences of one’s behavior appear to be borrowed from the insanity defense in criminal law. (Under the Model Penal Code standard, a defendant is not responsible for criminal conduct “if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law.”) Although the satisfaction of either of those criteria would certainly result in a manifestation, the converse is not also true. A defect in volition or cognition is not required for a manifestation under IDEA. The manifestation standard in IDEA is broader, requiring only a causal link or a direct and substantial relationship—both of which appear to have been present in this case.

Substituted Consent: School Districts’ Evaluation Proposals Upheld Over Parents’ Objections In Two Cases

Lincoln-Sudbury Regional School District, BSEA No. 10-6037, 16 MSER 267 (2010) (Berman)Lowell Public Schools, BSEA No. 11-0039, 16 MSER 365 (2010) (Crane)

Two cases this quarter, Lincoln-Sudbury Regional School District, BSEA No. 10-6037, 16 MSER 267, and Lowell Public Schools, BSEA No. 11-0039, 16 MSER 365, considered a school district’s request for substituted consent to re-evaluate a student who was already receiving special education. In both cases, the pro se parents objected to the district’s proposed evaluation and were in the process of obtaining an independent evaluation. In both cases, the hearing officer found that the district had met its burden of proof. Both evaluations were therefore allowed to proceed over the parents’ objections.

The student in Lincoln-Sudbury was a fifteen-year-old girl in ninth grade. She had previously been diagnosed with ADHD and a learning disability, and was receiving services under an IEP to address her needs in those areas. Her last re-evaluation had taken place in seventh grade. The district sought permission for a psychological evaluation, including projective and personality testing, to be performed by an independent psychologist of its choosing. The district believed that the student might have emotional disabilities, in addition to those disabilities that had already been identified. In support of its position, the district pointed to the facts that, since entering high school, the student had engaged in multiple problematic behaviors, including “repeated lying, tardiness, leaving campus without permission (three times), acknowledged experimentation with cigarettes, alcohol and marijuana (outside of school), wearing overly revealing clothing despite advice and redirection, sneaking out of her house at night to go to an older boy’s house (on one occasion) and a history of self-injury (cutting her arms).” 16 MSER at 269. She had been involved in 23 disciplinary incidents over the course of the school year. One incident involved pushing another student, but the majority involved “cutting class, taking excessively long breaks from class, excessive tardiness to class, and then failing to attend the detentions that had been imposed as a consequence.” Id.at 270. She had also endorsed three out of six items on a suicide screening questionnaire, indicating that she was at risk in that area.

The parents argued that the proposed re-evaluation was not necessary for several reasons. First, they contended that the student’s behaviors were not unusual and were in fact typical of many students at her school. The parents also argued that her behaviors were attributable entirely to her already-diagnosed disabilities and that the behaviors could be addressed through better services or accommodations for those disabilities. The parents objected in particular to the proposed projective and personality testing. They argued that such testing was neither valid nor reliable. They asserted that such testing would harm their daughter by stigmatizing and labeling her, without providing any useful information for educational planning.

The parents cross-examined the district’s witnesses and submitted a number of articles from sources such as scholarly journals, but they neither testified themselves nor presented any other evidence. The district presented four witnesses: the student’s special educator, her guidance counselor, a school psychologist, and the special education director. The hearing officer afforded “significant weight” to the testimony of the special educator and guidance counselor, who knew the student well and who testified “candidly and persuasively” regarding “both Student’s presentation at school and their need for further information to serve her effectively.” 16 MSER at 273. The hearing officer also found the testimony of the school psychologist and the special education director to be “credible and persuasive” regarding the usefulness of projective and personality testing and the way in which the results would be used. Id.

The hearing officer concluded that the district was not only permitted but compelled to obtain a comprehensive evaluation “where, as here, (1) the Student’s behavior interferes with her educational progress, (2) has persisted despite much individual attention by Student’s special education liaison and guidance counselor, outside counseling by two therapists, and consistent involvement by committed and knowledgeable parents, and (3) implicates her safety and well-being,” regardless of the cause of the behavior and regardless of whether other students might behave in a similar manner. 16 MSER at 274. The district’s concern was commendable. We note that the district’s concerns were based at least in part on behaviors that occurred outside of school, and in part on fairly minor disciplinary violations. In representing parents, we find that school districts often discourage parents from pursuing evaluations, or deny eligibility after evaluation, when the parents’ concerns involve behaviors that are observed at home but not at school, or involve in-school infractions that “all kids” commit.

In this case, the hearing officer found that the parents had failed to demonstrate that the proposed projective and personality testing would be either unreliable or harmful. Because the parents “presented no witnesses with relevant expertise to challenge the School’s testimony about the value of the tests, or to explain and discuss the articles Parents submitted,” 16 MSER at 274-75, the hearing officer concluded that she had “no basis for giving any weight to the articles and the testimony of the School’s witnesses is unrefuted.” Id. at 275. Similarly, the hearing officer stated, the parents had presented no evidence to show that the student would be harmed by the proposed testing. The hearing officer pointed out that neither of the student’s two psychotherapists had made any statement, whether through testimony or in writing, to that effect. Lastly, the hearing officer rejected the parents’ argument that the district’s testing was precluded by the fact that the parents were obtaining an independent psychological evaluation. As the hearing officer stated, although the parents have the right to obtain an independent evaluation and have it considered by the Team, the district retains the right to conduct its own evaluation as well.

Similar issues regarding evaluation arose in Lowell, which involved a seven-year-old second-grader who was overdue for his three-year re-evaluation. The parent objected that a re-evaluation was not necessary because his son, who was on an IEP, had been doing well in school and making good progress. The hearing officer rejected this argument, stating that “even if I were to agree with Father entirely regarding his son’s progress and success in school, this would not change the necessity for an updated three-year evaluation.” 16 MSER at 366. As the hearing officer pointed out, the evaluation might well show that the student was doing so well that “future special education and related services may not be needed or may be adjusted so that they are commensurate with the Student’s current educational needs.” Id. Without a re-evaluation, the hearing officer stated, the district would be unable to comply with state and federal laws that require the district to determine continued eligibility and to tailor any needed services to the student’s current needs.

The parent also pointed out that the student was in the process of receiving an independent evaluation. The hearing officer, like the one in Lincoln-Sudbury, found that this had no bearing on the district’s request for substituted consent. The hearing officer reiterated the general principle that “a parent may not preclude a school district from evaluating their son or daughter, nor may a parent force a school district to rely upon a parent’s own evaluation.” 16 MSER at 366. The district was allowed to proceed with its re-evaluation, consisting of psychological, academic, speech- language, home, and functional behavioral assessments.

School Refusal, Extended Evaluations, And Physicians’ Statements

Middleboro Public Schools , BSEA #s 10-0006 & 10-3523, 16 MSER 305, and Ludlow Public Schools, BSEA #10-3822, 16 MSER 324, were similar to each other. Both cases concerned adolescents with emotional and other disabilities who had missed a great deal of school. The student in Middleboro often refused or was unable to attend school, due to his emotional condition; in Ludlow, it appears that the parent, on the advice of the student’s physician, kept her out of school for more than a year. In both cases, the students’ physicians submitted statements for home or hospital education, which were deemed insufficient. In both cases, an issue arose regarding extended evaluation. In Middleboro, the parent’s request for an extended evaluation at a private program was denied, while in Ludlow the district’s request for an extended evaluation in two public school settings was granted. The parent in Middleboro was represented by an advocate; the parent in Ludlow was pro se.

In Middleboro, the parent originally filed for a hearing, seeking a ruling that the district’s IEP, which proposed an in-district therapeutic program, failed to meet the student’s needs. The parent also contested the district’s failure to provide home services in response to the physician’s statements, and sought an extended evaluation at the private Wareham Academy. The parties then reached a mediated agreement aimed at helping the student to return to school. When that proved unsuccessful, the district filed its own hearing request seeking, inter alia, a finding that its IEP was appropriate and a finding that the parent was denying the student FAPE by allowing him to refuse to attend school. The hearing officer stated that, because each party had filed a hearing request regarding the appropriateness or inappropriateness of the IEP, the parties would share the burden of proof on that issue. He did not elaborate as to how such sharing of the burden would be allocated in practice.

As an initial matter, the hearing officer had little trouble in concluding that an extended evaluation was not warranted. For one thing, he pointed out that under 603 CMR 28.05(2)(b), an extended evaluation is allowed only when the Team finds that the existing evaluation results are insufficient to develop an IEP. That was not the case here, as the district had developed a complete IEP. Moreover, neither of the expert witnesses called by the parent (a psychiatrist and a neuropsychologist) recommended an extended evaluation. Furthermore, the parent introduced no evidence regarding Wareham Academy. The student had not even applied there, let alone been accepted there; neither of the independent experts had observed the program; and the parent could not explain how the program would address the student’s issues.

The hearing officer went on to find that the IEP, with modifications (consisting of two new evaluations to be arranged by the district), was appropriate for the student. One may wonder how an IEP can be appropriate if it is not addressing a student’s emotional issues in such a way as to allow him to return to school. The hearing officer stated that he believed the psychiatrist’s testimony that the student’s non-attendance was related to his psychiatric condition, that the student was not avoiding school just to do so, and that the parent and student both wanted him to attend school. The hearing officer seemed to ascribe a volitional component to the student’s non-attendance, however. In a strongly- worded passage, he accused the parent and student of “subvert[ing] the mediation agreement,” “totally failing to cooperate” with the district’s behavioral consultant, and “completely sabotag[ing] the entire purpose” of the mediation agreement. 16 MSER at 309. The hearing officer concluded that “the alternative of not going to school for [the student] is actually quite attractive and allows [the student] the avoidance of responsibility and addressing his issues,” and that “there needs to be some form of motivation for [the student] not to remain at home.” Id.

The hearing officer also found that the student’s lack of attendance at school constituted a denial of the student’s right to FAPE. The practical effect of such a finding is unclear. Under IDEA and M.G.L. c. 71B only the school district, not the parent or student, has the obligation to provide FAPE; presumably, therefore, only a district may be liable for denying it. In this case, the finding that the district’s IEP was appropriate should have been sufficient to determine the controversy at issue. It does not appear to add anything to blame the parent or student in these circumstances.

Lastly, the hearing officer found that the district was not required to provide home tutoring to the student under 603 CMR 28.03 (3)(c). That regulation requires a district to arrange for educational services in the home or hospital when a physician verifies in writing that the student “must remain at home or in a hospital . . . for medical reasons” for at least fourteen days during a school year. The hearing officer quoted a question and answer guide from DESE’s Program Quality Assurance office that interprets this language restrictively, saying that the student must be “confined” to a home or hospital for medical reasons. The hearing officer then conflated the two standards, saying that the regulatory scheme requires that the student “must remain at home/be confined to home for medical reasons.” 16 MSER at 310; see also id. at 311. Because the evidence showed that the student sometimes played outside on days when he did not go to school, the hearing officer concluded that the student was not “confined to home” and therefore not entitled to receive home tutoring. We believe that there can be a significant difference, however, between being “confined to home” for medical reasons (the language of the advisory, which this student clearly did not satisfy) and needing to “remain at home” for medical reasons (the language of the regulation, which some students with emotional disabilities could well satisfy, even if they are physically able to set foot outdoors). If the DESE’s interpretation conflicts with the regulation, of course, the language of the regulation should control. See, e.g., Uxbridge School District, BSEA #11-1115, 16 MSER 334 (2010); Boston Public Schools, BSEA #01-2461, 7 MSER 16, 19 (2001).

In this case, the result would have been the same even if the hearing officer had used the more general standard of the regulation, because the hearing officer concluded that the three Physician’s Statements for Temporary Home or Hospital Education, submitted by the student’s psychiatrist, were deficient. The statements appear to have consisted mainly of recitations of the student’s diagnoses and requests for a different placement. Lack of specificity on a physician’s statement is a fairly common problem, which could perhaps be alleviated by the DESE’s development of a form that requires the physician to answer more detailed questions. In the meantime, however, practitioners should be alert to the facts that a physician’s statement “must provide a basis to conclude that the student cannot be educated within a school”; that “a simple recitation of the student’s diagnoses is not sufficient”; and that a physician’s attempt to use the form to change the student’s placement may be looked upon with disfavor. 16 MSER at 311.

In Ludlow, the Physician’s Statements submitted by the student’s psychiatrist were also found (by a different hearing officer) to be inadequate. In that case, the district had accepted the statements and provided tutoring, but the parent asserted that the quality and amount of tutoring were insufficient. The hearing officer found no violation, because she concluded that the defects in the physician’s statements meant that the district was under no obligation to provide any tutoring at all. The hearing officer focused on the fact that the physician had not indicated the “expected duration of the confinement,” as the DESE’s form requires. Instead, the physician stated that the student’s condition was indefinite and would depend on the educational setting she attended. Although it is likely that the duration of some medical conditions, particularly of the emotional variety, will be difficult to predict, the better course would be for the doctor to give his or her best estimate as to the duration and to submit an updated form later if the initial estimate turns out to be inaccurate.

Two IEPs were at issue in Ludlow, one for 2009-2010 and one for 2010-2011. The hearing officer concluded that both were appropriate because the IEPs incorporated all of the recommendations made by an independent neuropsychologist, as well as by school personnel, for a self-contained, therapeutic, language-based program. The IEPs did not follow the additional recommendations of the student’s psychiatrist and therapist, who stated that the student needed to attend a program in a private setting. With regard to the 2010-2011 program, the hearing officer noted that, “other than its location in a public high school building, the [district’s proposed program] contains all services and elements recommended by [the psychiatrist].” 16 MSER at 330. The hearing officer explained that she gave little weight to the psychiatrist’s and therapist’s recommendations for a private school “because neither has observed the program(s) proposed for [the student], has seen her in a school setting or has spoken to any Ludlow school personnel about [the student] or school services,” and because they had based their opinions about the appropriateness of a proposed public school program “on parental reports which I have observed to be unreliable.” Id. Once again, the importance of having expert witnesses observe proposed programs and communicate with school staff is obvious. Also, if the district’s proposed program contains all of the other elements recommended by an evaluator, the public-versus-nonpublic distinction is a weak basis on which to bring a case, unless the evaluator can clearly articulate the reasons for the private school recommendation and demonstrate the relevant differences between the two settings.

 

One troubling aspect of Ludlowlies in the fact that the hearing officer upheld the 2009-2010 IEP, despite “significant procedural difficulties” with that document. 16 MSER at 329. The IEP’s defects, which the hearing officer characterized as “obvious drafting errors,” appear to this commentator to have been crucial omissions. As the hearing officer stated, the IEP “does not set out the location or name of the school or program in which the services will be delivered; it does not set out a full day of academic services consistent with the self-contained nature of the proposed classroom, it lacks explicit social skills and social communication goals although these are primary recommendations for [the student] as well as primary components of the program described by [a district special educator]; and it fails to list all the available therapeutic and supportive services identified as integral components of the program by school witnesses.” Id. The hearing officer concluded that no harm occurred as a result of the IEP’s many infirmities because she found that it was “clear from the testimony of the teachers and the parent that the items missing from the IEP document were not missing from the other information shared with the Parent through visits, Team meetings, and discussions with Baird Middle School and special education personnel.” Id. We think that parents should not have to rely on “discussions,” which are often vague or conflicting, and which are not generally enforceable at the BSEA unless memorialized in an IEP. Parents and students have the right to a complete IEP, including all of the elements specified in 20 U.S.C. §1414(d)(1) (A), 34 C.F.R. §300.320, and 603 CMR 28.02(11) and 28.05(4). These include a complete set of goals and a complete description of all services being proposed. Parents also have the right to a written designation of the child’s placement, including the location and name of the proposed program. See Boston Public Schools, BSEA #04-2506, 10 MSER 311, 313-19 (2004). The district controls the contents of an IEP. Parents should not have to guess at what is being offered, nor should districts be excused from their responsibility to provide an IEP that contains all of the elements required by law.

The hearing officer in Ludlow also granted the district’s request for an extended evaluation, which was to take place in two settings at the end of the 2009-2010 school year and during the summer of 2010. The hearing officer found that the request for an extended evaluation was reasonable because the district needed current information about the student in order to develop a “responsive IEP.” 16 MSER at 330. Under 603 CMR 28.05(2)(b), however, an extended evaluation may take place only when the existing information is “insufficient to develop an IEP.” See Middleboro Public Schools(discussed above). Here, in the same decision in which she approved the extended evaluation, the hearing officer upheld two IEPs, including the one for the 2010- 2011 school year, as being appropriate. This leaves the reader wondering: if the existing IEPs were not complete and responsive, how could they be appropriate for the student? And if the IEPs were complete and appropriate, why was an extended evaluation allowed?

Stay-Put Applies During Pendency Of Dispute Over Student’s Continued Eligibility

Uxbridge School District, BSEA #11-1115, 16 MSER 334 (2010) (Crane)

In Uxbridge School District, BSEA #11-1115, 16 MSER 334, the district determined midway through a student’s IEP period that the student was no longer eligible for special education. In its notice to the parents regarding its determination, the district stated that it would discontinue the student’s services within 30 days of the date of the Team meeting. The parents notified the district that they disputed the finding of no special needs and asserted the student’s stay-put rights pursuant to 603 CMR 28.08(7). The parents did not file a hearing request at that time. The district proceeded to discontinue the student’s services, taking the position that the filing of a hearing request was required to trigger stay- put protections during an eligibility dispute. Over a year later, the parents filed for hearing.

The hearing officer soundly rejected the district’s position. In a detailed and well-reasoned discussion, he pointed out that, under the plain language of 603 CMR 28.08(7), “stay put protections are triggered as soon as there is ‘any dispute’ between parents and a school district regarding special education services or placement.” 16 MSER at 335. Taking into account not only the language of the regulation but the entire state regulatory scheme, the hearing officer concluded that the phrase “any dispute” is “not limited to those disputes where a request for a due process hearing has been filed with the BSEA.” Id.

The hearing officer acknowledged that certain statements within a DESE advisory (Administrative Advisory SPED 2001-4) apparently took a different view, in the context of a finding of ineligibility. The hearing officer found, however, that the advisory contained no analysis or explanation of those statements, nor did the advisory even reference state or federal statutes or regulations regarding stay-put. He concluded that the statements within the advisory have no persuasive authority.

The district also argued that having to provide stay-put services would result in the student’s receiving an inappropriate program, since the IEP on which the services were based was over a year old and (the district contended) the student’s needs had changed. The hearing officer observed that stay-put principles “do not necessarily rule out adjustments as a student advances in age and grade,” and that “the central inquiry is the actual educational impact upon the student as a result of any change of services or setting.” 16 MSER at 336 n.15. See also Concord School District, BSEA #11-0594, 16 MSER 337 (2010)(discussed below).

In our experience, confusion over stay-put during an eligibility dispute is not uncommon (due perhaps to the existence of the DESE advisory). After Uxbridge, however, school districts are on notice that they are required to continue providing special education and related services whenever parents dispute a finding that a student is no longer eligible, even if the parents have not filed a hearing request.

Change From Typical Regular Education Classroom To Co-Taught Regular Education Classroom Does Not Violate Stay-Put

Concord School District, BSEA #11-0594, 16 MSER 337 (2010) (Crane)

The same hearing officer who decided Uxbridge had a chance to consider the degree to which “stay-put” allows services to be modified. In Concord School District, BSEA #11-0594, 16 MSER 337, the student’s stay-put IEP specified a full inclusion program. Most of the student’s time had been spent within a typical regular education classroom. For the next school year, the district proposed an IEP under which the student would continue to receive a full inclusion program, but in a regular education classroom co-taught by a special educator and a regular education teacher. The parents rejected that IEP in part and asserted that the student had a stay-put right to continue in a regular education classroom that was not co-taught. In the circumstances of this case, the hearing officer rejected that argument.

First, the hearing officer reiterated that, in order to determine whether a change in a student’s program violated his stay-put rights, the hearing officer needed to ascertain the “actual educational impact upon the student” as a result of that change. 16 MSER at 338. As the hearing officer explained, the educational impact would need to be “detrimental and substantial,” id., resulting in “’a fundamental change in, or elimination of, a basic element of the educational program,’” id. at 338-39, or “a ‘departure from the student’s LRE-compliant setting,’” in order to violate stay-put. Id. at 339. In this case, the hearing officer found that a change from a non-co-taught to a co-taught class was not such a change.

The hearing officer, following John M. v. Board of Educ. of Evanston Tp. High Sch. Dist. 202, 502 F.3d 708 (7th Cir. 2007), noted that co-teaching is considered to be a teaching methodology, and that districts “are generally given discretion to select the particular methodology that is to be used for a student, so long as the methodology is likely to allow the student to receive FAPE.” 16 MSER at 339. Thus, in the stay-put context, “a school district would normally be given the discretion to select and change methodology unless the particular methodology may be considered part of the IEP.” Id. In this case, the IEP did not specify that the student be placed in a non-co-taught classroom. The parents argued that a co-taught classroom was inconsistent with the student’s need for a structured classroom with consistent rules and minimal disruptions, as set forth in the stay-put IEP. The hearing officer found, however, that there was no persuasive evidence that the co-taught classroom would fail to provide the student with such an environment.

The parents also attempted to argue that the co-taught classroom was more restrictive than a non-co-taught class, because there would be a larger percentage of special education students in the co-taught classroom. The hearing officer rejected this argument as well, holding that LRE principles are not implicated under these circumstances.

Lastly, the parents argued that, regardless of what considerations were addressed in the IEP, the change of classrooms would violate stay-put because it would result in a substantial diminution of the student’s services. The parents pointed out, for example, that in the co-taught classroom the student would have fewer fixed routines and a more flexible schedule for delivery of his special education services. The hearing officer rejected this argument as well, holding that stay-put principles do not “extend to the right to replicate the precise teaching environment of a regular education classroom from one year to the next.” 16 MSER at 340. As he stated, “Stay-put principles simply do not extend to this level of detail, even though these details may have educational significance, unless the student’s stay-put IEP requires it.” Id.

If the hearing officer’s interpretation of stay-put is accepted, practitioners will need to scrutinize the stay-put IEP and proposed stay-put program carefully, in accordance with the principles set forth in this decision, in order to ascertain whether a proposed change is detrimental enough to violate stay-put.

Statutes Of Limitations (IDEA And Section 504) And Notices Of Unilateral Placement

Danvers Public Schools, BSEA #10-1721, 16 MSER 300 (2010) (Oliver)

In Danvers Public Schools, BSEA #10-1721, 16 MSER 300, the parents filed a hearing request on September 3, 2009. They sought reimbursement for their unilateral placement of their daughter at New England Academy for the 2007-2008 and 2008- 2009 school years. The first major problem for the parents was that IDEA allows only a two-year look back; thus, any claim for more than two years back is barred by IDEA’s statute of limitations, 20 U.S.C. §1415(f)(3)(C). The parents tried to get around this problem by arguing that they were bringing their claims under Section 504, as well as under IDEA. Section 504 has no specific statute of limitations, so the statute of limitations under 504 must be analogized from other statutes, which could have longer statutes of limitation.

This was an ingenious argument by the parents, but it didn’t work. On the district’s motion to dismiss, the hearing officer held that all claims predating September 3, 2007 were time-barred, under Section 504 as well as under IDEA. Following Boston Public Schools, BSEA #09-1007, 15 MSER 100 (2009), and PP ex rel. Michael P. v. West Chester Area Sch. Dist, 585 F.3d 727 (3d Cir. 2009), he concluded that IDEA’s two-year statute of limitations is also the applicable statute of limitations for Section 504 claims in Massachusetts.

That ruling on the statute of limitations would limit the parents’ claim to the period after September 3, 2007, and they had placed their daughter in August 2007. While that loss of a month or less of reimbursement does not seem such a hardship, parents had another problem. The district claimed that the parents had failed to give proper notice pursuant to 20 U.S.C. §1412(a)(10)(C)(iii) as to their intent to place the student at NEA and seek public funding for the placement, before making the placement in August 2007. That statutory notice provision states that hearing officers can reduce or deny reimbursement for private school tuition if the parents fail to give notice, with reasons, at either the last Team meeting or ten calendar days before removing their child from public school. The hearing officer found that the parents did give notice at a September 18, 2007 Team meeting, but that was after they had placed their daughter in the private school. Although the notice provision gives the hearing officer discretion whether to reduce or deny reimbursement for parents’ failure to comply with the notice requirement, the hearing officer stated that, “[b]ased upon just these facts and the applicable law I would ordinarily grant [the district’s motion to dismiss] for the entire 2007-2008 school year.” Id.

The hearing officer did not explain why he would be inclined to deny reimbursement for the entire school year instead of only for the time before the parents gave notice, but he did not have to make that ruling, because he found that when the student’s IEP expired in March of the student’s first year in private school, the district did not offer any IEP or placement at all until June. Because the failure to offer an IEP and placement for three months “is a significant violation of the statutory and regulatory scheme of both federal and state special education law,” 16 MSER at 304, the hearing officer held that the parents’ reimbursement claims for that three-month period of the 2007-2008 school year would be permitted to proceed. He concluded that, “[a]bsent some extremely mitigating circumstances or mutual consent of the parties, such a situation simply cannot be allowed.” Id. This result underscores the general principle that failure to develop an IEP is an automatic denial of FAPE, for which relief will almost always be granted.

Hearing Officers Continue To Differ Regarding BSEA Jurisdiction Over Settlement Agreements

Monson Public Schools, BSEA #10-5064, 16 MSER 296 (2010) (Byrne)

The parents in Monson filed a hearing request seeking interpretation of a clause in a settlement agreement concerning the method of calculation of reimbursement to the parents for transportation expenses and for a computer. The agreement had been negotiated between the parties in resolution of disputed claims covering four school years. Both parties were represented by counsel in the negotiation of the agreement. The agreement was not the result of a mediation pursuant to 20 U.S.C. §1415(e) or a resolution meeting pursuant to 20 U.S.C. §1415(f)(B); the provisions of the agreement were not incorporated into the student’s IEP; nor does it appear that the agreement was reached through a BSEA settlement conference.

The agreement included a provision stating that the BSEA or any court of competent jurisdiction could enforce the agreement. When the parents asked the BSEA to enforce the agreement, however, the district moved to dismiss, asserting that the BSEA lacked jurisdiction to do so. The hearing officer in this case concluded that the BSEA does not have jurisdiction and dismissed the case.

As this hearing officer (Lindsay Byrne) acknowledged, not every hearing officer would have reached the same result. She described the issue of jurisdiction over settlement agreements as one that has occasioned “considerable debate in the special education bar and within the BSEA for some time.” 16 MSER at 297. Within the past several years, the cases that have considered this issue have concluded that, where a settlement agreement relates to rights and responsibilities that fall within the BSEA’s purview, the BSEA may interpret the agreement. E.g., Peabody Public Schools, BSEA #09-6506, 15 MSER 154, 156-57 (2009); Mashpee Public Schools, BSEA #09-1946, 14 MSER 331 (2008); Longmeadow School District, BSEA #07-2866, 14 MSER 249 (2008); see also Wachusett Reg. Sch. Dist., BSEA #09-2526, 14 MSER 382 (2008) (BSEA has jurisdiction to interpret resolution agreement); Wrentham Public Schools, BSEA #08-1326, 14 MSER 230 (2008) (BSEA has jurisdiction to interpret cost-share agreement between two districts). The hearing officer in Monson, however, elected to follow her previous decision in Agawam Public Schools, BSEA #02-2374, 8 MSER 103 (2002) (see also Foxborough Public Schools, BSEA #s 10-6287 & 10-7942, 16 MSER 214 (2010), regarding a resolution agreement), and held that the BSEA lacks such jurisdiction.

The parents argued that the BSEA has jurisdiction over settlement agreements for three reasons: the broad grant of jurisdiction to due process hearing agencies in 20 U.S.C. §1415(b)(6)(A) and 603 CMR 28.08(3)(a); the need for the parties to exhaust administrative remedies; and the promotion of one of IDEA’s primary aims, effective dispute resolution. The hearing officer rejected each of these arguments. With regard to the statutory and regulatory grants of jurisdiction, she reasoned that, because neither resolution agreements nor mediation agreements are expressly made reviewable by the BSEA, settlement agreements should be treated the same way. In her view, a settlement agreement represents a privately-negotiated document, whereas the BSEA “exists to enforce the public duties set out in the IDEA,” 16 MSER at 298; to ensure that “public responsibilities [to individual students] are appropriately developed, designed, and implemented,” id.; and “to assure appropriate, accessible, equitable public education to students with disabilities,” id., including “ensuring the proper distribution of funds for a public purpose.” Id. at 299. Thus, she found that the BSEA is “not required to take jurisdiction of privately negotiated settlement agreements that are not incorporated into an IEP.” Id. Her view on this issue allowed her to dispose of the parents’ second argument quickly: because the hearing officer concluded that the BSEA lacked jurisdiction, she stated that resort to the BSEA was not required before a party could go to court to enforce a settlement agreement. Lastly, the hearing officer expressed skepticism as to the parents’ policy arguments, and stated that those arguments in any event could not skirt what she viewed as “black and white jurisdictional limitations.” Id.

We anticipate that the issue of BSEA jurisdiction over settlement agreements will continue to arise periodically, until Congress, the Legislature, or the courts clarify the matter. In the meantime, practitioners can learn several lessons from the cases that have considered this issue. First, when negotiating any settlement agreement, it is worth considering whether to request incorporation of the agreement into the student’s IEP. Second, even if the settlement agreement embodies the parties’ agreement that the BSEA may enforce the agreement, that provision itself may turn out to be unenforceable. Third, it may be wise to resort to the BSEA before going to court regarding a settlement agreement in any event, in order either to satisfy the exhaustion requirement (if the hearing officer believes that the BSEA has jurisdiction) or to obtain a ruling that exhaustion is not necessary (if the hearing officer follows Monson).

Compliance: A BSEA Decision Ordering Reimbursement Must Be Implemented Immediately

Sudbury Public Schools, BSEA #10-0704, 16 MSER 361 (2010) 2 (Crane)

In Sudbury, the parent had earlier succeeded in obtaining an order from the BSEA after an evidentiary hearing, which required the district to reimburse her for the costs of a unilateral placement at the Carroll School for the 2009-2010 school year. Under 603 CMR 28.08(6) and BSEA Rule XIII(C), a hearing officer’s decision “shall be implemented immediately.” At the time of this compliance proceeding, however, more than four months had elapsed and the district had refused to reimburse the parent. The district asserted that it was not required to comply immediately with any order except an order for placement.

The hearing officer concluded that the district’s position was erroneous. He found that both state and federal law require immediate compliance with a BSEA decision. The fact that the district had filed an appeal from the decision did not excuse its obligation to comply. As the hearing officer stated, there is “no authority that would support an automatic stay simply on the basis of [the district’s] appeal to federal court,” 16 MSER at 362, nor had the district sought a stay from the court. The hearing officer therefore ordered the district immediately to reimburse the parent for all expenses due under the BSEA’s earlier decision.

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