Commentary on Massachusetts Special Education Decisions: 4th Quarter, 2015, by Marie F. Mercier and Daniel T.S. Heffernan:
April 20, 2016
This quarter’s decisions give credence to the adage that “litigation begets litigation.” The parties in Pembroke Public Schools, BSEA #1510495, 21 MSER 217 (Putney-Yaceshyn 2015) and Ludlow Public Schools, BSEA #1603589, 21 MSER 251 and BSEA #1603808, 21 MSER 276 had been around the block previously, with the Ludlow parties appearing twice in the same quarter. Hearing Officer Lyndsey Byrne, in Shrewsbury Public Schools, BSEA #15-8106, 21 MSER 247 (Byrne 2015), waded into the confusing and often litigated issue of a parent’s right to an Independent Education Evaluation, and brought much-needed clarity to the rights and obligations of parties in that area. The decisions about stay put, Pembroke Public Schools, BSEA #1510495, 21 MSER 217 (Putney-Yaceshyn 2015) and Hudson Public Schools, BSEA #1600764, 21 MSER 271 (Berman 2015), reestablish that stay put only applies to the essential components of a student’s program.
The BSEA’s authority to interpret settlement agreements is again explored in Milford Public Schools, BSEA #1601412, 21 MSER 219 (Berman 2015). The Ludlow decisions serve as a caution to parents to make sure that the hearing requests are styled in such a manner to properly invoke the jurisdiction of the BSEA. These decisions also demonstrate that parties must bring claims in a timely manner, and are only entitled to “one bite at the apple” and cannot re-litigate issues resolved against them in earlier proceedings. As is consistently the case, Pentucket Regional School District, BSEA 12-8636R, 21 MSER 22 (Figueroa 2015), shows again how diligent the hearing officers are in examining a parent’s claim for services even when the parent and student did not participate in the hearing. This is further demonstrated in Taunton Public Schools, BSEA #16-1127, 21 MSER 244 (Putney-Yaceshyn 2015), where the pro se parent, who failed to participate in the hearing, was uncivil in dealings with the hearing officer, and did not comply with BSEA rules, severely undermined the claim for additional services for the student. Sharon Public Schools, BSEA #16-00749, 21 MSER 267 (Scannell 2015) calls on us to again beat that dead horse that a parent’s case is doomed without supporting and well-founded expert opinion.
Stay Put Based Upon Actual Practice of the School District
Pembroke Public Schools, BSEA #1510495, 21 MSER 217 (Putney-Yaceshyn 2015) is an example, as are the Ludlow decisions discussed below, of the special education litigation adage that sometimes “litigation begets litigation.” In this round, the parties agreed to have the hearing officer decide the matter on the submission of documents and forgo witness testimony. The district and family had been before the BSEA numerous times and the present dispute concerned whether the family could assert stay put for extended school year services (ESY) provided in summer 2014 for ESY 2015. In a prior proceeding between the parties, the hearing officer ordered Pembroke to have the student evaluated to provide the instruction recommended by a Lindamood Phoneme Sequencing program (“LiPS”). That evaluation recommended 50 hours of Lindamood Bell programming. The parties agreed to have that 50 hours provided in summer 2014 in lieu of other ESY services. The student participated in that programming. When the district proposed a different ESY program for summer 2015, the parent asserted stay put rights to the 50 hours of Lindamood Bell programming. The hearing officer denied the right to stay put to the 50 hours of Lindamood Bell programming. The 50 hours of Lindamood Bell programming was not in essence the student’s ESY services. Pursuant to compliance with a prior order of the BSEA, the parties had agreed that this additional programming be provided in the summer and was therefore a one-shot deal, similar to providing compensatory services during the summer. It did not establish Lindamood Bell services as his regular summer services.
Hudson Public Schools, BSEA #1600764, 21 MSER 271 (Berman 2015) examined the concept of “operative placement” as it applies to stay put. The underlying principle of the well-established right to stay put provides that a student should remain in the last agreed-upon placement while a dispute is being resolved between the parties. Stay put’s purpose is to ensure stability of services until the dispute is resolved. In determining what constitutes stay put, decision-makers look to the actual program in place at the time the dispute arises, the “operative placement,” which may be different than what is called for in the IEP. They then determine if the proposed change to that operative placement impacts a fundamental component of the program. In this dispute, Hudson provided door-to-door transportation for the student during the school year. The student lived in the middle building of three apartment buildings situated along a U shaped driveway. During the school year the student was the only student from this apartment complex attending the district’s program while, in the summer, several students, from different buildings in the complex, attended the program. During the school year, the bus would drop the student off and pick her up at the entrance to her apartment building. During the summer the bus would pick up and drop students off at either end of the driveway.
The student’s IEP did not provide for “special transportation” and it did not provide for door-to-door transportation. The parent did not make a convincing case for the need for door-to-door transportation to the Team and therefore relied upon stay put. In that regard, she argued that door to door transportation was the “operative placement.” The hearing officer rejected this argument. While there was no dispute that door-to-door transportation was in place throughout the school year, it was a function of transportation efficiency, not the student’s needs. In addition, door-to-door transportation was not a fundamental component of the student’s educational program.
While stay put rights are valuable and certainly worth asserting in the face of a change in placement or programming, stay put does not protect every component of a student’s program. One should consider the centrality of the issue in dispute to the student’s programming before engaging in litigation.
Interpreting Settlement Agreements
The debate over the authority of the BSEA to interpret or determine breaches of settlement agreements continued on in Milford Public Schools, BSEA #1601412, 21 MSER 219 (Berman 2015). The 17-year-old student had a traumatic brain injury in addition to emotional and substance abuse disorders. The parties had resolved a prior dispute in a settlement conference while the student was attending an out-of-state treatment facility (“New Vision”). The agreement “anticipated” that the student would be discharged from New Vision in June 2015 and that the district would make referrals to approved day and residential placements of the parents’ choosing. The agreement also provided that the district would have no obligation to provide services or even an IEP “unless and until he is discharged from New Vision and returns to Massachusetts.” During the settlement conference, the parties also informally agreed that Chamberlain International School (“Chamberlain”) would be appropriate for the student. The student applied to Chamberlain but was rejected because, unbeknownst to either party, Chamberlain changed its admissions policy and was no longer accepting students with substance abuse issues. The district represented that it had sent referral packets to two other programs and parents maintained that no state-approved program would admit the student because of his traumatic brain injury diagnosis. New Vision discharged the student and the parents unilaterally placed him in Catalyst Residential Treatment Center in Utah (“Catalyst”). The district rejected the parents’ request to amend the settlement agreement to provide for reimbursement and placement at Catalyst. The parents filed their hearing request seeking this relief, and framed their hearing request as a breach of contract action under the doctrines of impossibility and implied covenant of good faith and fair dealing.
Milford moved to dismiss on the basis that the BSEA lacked jurisdiction to alter the settlement agreement. Here the hearing officer noted that the parents had not alleged any violation of IDEA or 504, that the IEP was inappropriate or that the student was denied FAPE—subject matters clearly within the BSEA’s jurisdiction. Therefore, the hearing officer dismissed the hearing request without prejudice, and noted that the parents could pursue a breach of contract action in a civil court. In addition, the parents could refile in the BSEA, alleging a denial of FAPE.
While we respect the hearing officer’s circumspection about her own authority and deference to the breach of contract expertise of judges, federal and state law has clearly sought to funnel special education disputes to the BSEA. Regardless of how it was pled, this dispute clearly arose from the provision of special education services to the student and would have benefitted from the specialized expertise of a BSEA hearing officer.
Parent Barred from Re-litigating the Same Claims; Other Claims Doomed by Lack of Expert Support
Hearing officer Rosa Figueroa issued two decisions involving the same parties in Ludlow Public Schools, BSEA #1603589, 21 MSER 251 (Figueroa 2015) and Ludlow Public Schools, BSEA #1603808, 21 MSER 276 (Figueroa 2015). In the first matter, the parent did not participate in the hearing but, as is typical with the BSEA, the hearing officer took great pains to ensure that the student’s case was fully considered. The nine-year-old student had autism spectrum disorder and intellectual disability and was placed at the May Center in January 2014. The student missed many days of school and was frequently tardy. The May Center terminated the student on May 15, 2015 because of the parent’s purported abuse of staff and parent’s dissatisfaction and interference with the May Center program for the student. The student remained out of school through the hearing in November 2015. Ludlow did extensive evaluations of the student and offered an in-district program. The parent rejected the placement and instead sought an out-of-district placement. At hearing, Ludlow presented testimony about the qualifications of its staff as well as the similarity between its proposed program and the student’s former program at the May Center, where he had made progress. In addition, Ludlow personnel testified that the student was comfortable and fit in well when he visited the proposed program. In support of her position, the parent submitted expert letters. Those letters were given no weight, however, because the experts were unfamiliar with Ludlow’s program and heavily reliant on representations from the parent. Not surprisingly, the hearing officer found Ludlow’s program provided FAPE. The parent’s case was doomed for obvious reasons, including not having live testimony or well-founded expert opinion supporting her case, as well as being cast in a negative light from the onset because of the termination by the May Center.
The second matter between the parties, BSEA #1603808, was decided on a motion to dismiss a month after the first matter, BSEA #1603589, was decided. The parent filed #1603808 shortly before the hearing in #1603589, raising many of the same issues raised in #1603808 and decided by the hearing officer. Ludlow moved to dismiss or limit #1603808 arguing that the principles of res judicata and collateral estoppel barred the parent from re-litigating previously adjudicated issues; the two-year statute of limitations barred some of the claims; and the BSEA lacked the authority to award some of the relief the parent sought. Concerning the last point, the parent claimed that the student was denied FAPE while in programs in Agawam during 2013 and at the May Center because Ludlow failed to properly oversee those programs. For relief, parent requested an order directing Ludlow to create written protocols for overseeing the student’s program and a “detailed problem resolution system.” While the BSEA is authorized to determine FAPE for a particular student, and the parent’s claim in this regard may continue, the BSEA does not have jurisdiction to order the district to create such policies and protocols, especially a “detailed problem resolution system” where federal and state law has already established an extensive one. Therefore, this request was dismissed with prejudice. The hearing officer, for similar reasons, dismissed the parent’s claim that Ludlow failed to properly supervise the May Center’s medication administration, storage, documentation, and staff training.
Concerning the statute of limitations issue, the parent claimed a denial of FAPE sometime in 2013. The operative date from which to look back is two years prior to the filing of the hearing request. Here, the parent had filed an earlier hearing request that was withdrawn and the subsequent one was filed on November 9, 2015. This then became the operative date. As a significant practice note, in amended pleadings, the federal and state rules of civil procedure provide that for statute of limitation considerations, the operative date is not date of the amendment but, rather, the initial date of the complaint. The BSEA Rule I.G provides that in such situations, the operative date is the date of the amendment. The hearing officer would not dismiss, at this juncture, as time barred the 2013 FAPE claim for two reasons. First, the hearing request was vague as to when in 2013 the alleged violation occurred. Second, the parent alleged that the two-year statute of limitations should be tolled, pursuant to 20 U.S.C. § 1415(f)(3)(C), because Ludlow had concealed information about the violation. The hearing officer therefore deferred the determination of this statute of limitations issue until further clarification and evidence could be provided.
The hearing officer also barred claims raised and adjudicated in proceedings between the parties before her and another hearing officer concerning the student’s stay put rights and compensatory tutoring. The issue of Ludlow’s proposed April 2015 to April 2016 IEP and placement had been previously raised and decided. Barring a material change in the student’s circumstances, the parent was barred from litigating the appropriateness of the April 2015 to April 2016 IEP.
This case, as well as Milford Public Schools, BSEA #1601412, 21 MSER 219 (Berman 2015), discussed above, serve as warnings to parents and their representatives to properly frame their hearing requests so that the matter may be adjudicated in the BSEA.
Parents Obtain Reimbursement for IEE Despite Delay
There has been an increase in the number of hearing requests filed concerning Independent Educational Evaluations (“IEEs”). The reasons for this are: (1) the importance of evaluations in developing appropriate programming for students; (2) the high cost to parents of obtaining private evaluations; and (3) the confusion over the law surrounding IEEs. State law has recognized the need to provide a balance between the district and parents with limited financial means by providing that income-eligible parents have an uncontestable right to public financing of an IEE.
Shrewsbury Public Schools, BSEA #15-8106, 21 MSER 247 (Byrne 2015) provides an analysis of the law covering parents’ right to a publically funded IEE in other circumstances. The district and the parents agreed, pursuant to BSEA Rule II, to submit the matter on documents without testimony. Not only did the parent proceed pro se, but as rarely occurs, the district did also. At the time of this decision, the student was in the fourth grade in a substantially separate in-district special education program. He had received special education services since preschool. The district had conducted his most recent comprehensive evaluation in November and December of 2012 when he was in first grade. It consisted of educational assessments, classroom observations, a psychological evaluation, a speech-language evaluation, an occupational therapy evaluation, and a learning assessment. The parents then accepted the student’s annual IEPs through third grade.
In fourth grade, the parents became concerned about their son’s academic progress. The district proposed a reading assessment at a Team meeting in November 2014. The parents consented to the assessment by an out-of-district specialist who conducted the evaluation in January 2015. Her report was based upon her review of the student’s educational record, her interviews with school staff and her observation of the student’s school program. She did not conduct any individualized or standardized reading assessments. The Team reviewed the report on March 3, 2015 and proposed to increase the in-class support and decrease the 1:1 reading tutorial. The parents rejected the proposed change.
Meanwhile, the parents had contacted Children’s Hospital Learning Disabilities Clinic (“Clinic”) on January 22, 2015 about a comprehensive evaluation for their son. After returning pre-evaluation paperwork, the evaluation was scheduled for July 15, 2015. The Team reconvened on May 15, 2015 to discuss the student’s fourth grade IEP. The resulting IEP reduced the student’s pull-out for reading and added a session for guided reading in the special education classroom. The parents rejected the IEP and proposed placement on June 10, 2015. On June 8, 2015, they wrote to the district requesting funding for an IEE of their son by the Clinic due to their concerns with the student’s lack of effective progress. The district denied their request and on June 14, 2015, within the five school day time limit mandated by 603 CMR 28.04(d), requested a hearing seeking a determination that the district was not responsible to fund the Clinic’s evaluation. The district made three arguments: (1) the request was untimely because it was made more than 16 months after its own evaluations in December 2012; (2) the student’s three-year re-evaluation was due to be conducted in December 2015 and the district should be entitled to conduct its evaluation first; and (3) the parents never explicitly disagreed with the district’s December 2012 evaluation.
In her decision, Hearing Officer Byrne emphasized that IEEs are a “fundamental component of both the federal and state special education framework.” Citing Phillip C. v. Jefferson County Board of Education, 701 F.3d 691, 698 (11th Cir. 2012), the hearing officer noted, “[t]he right to a publically financed IEE guarantees meaningful participation throughout the development of the IEP.” Federal and state law both protect this right and entitle parents to an IEE if they disagree with the evaluation obtained by the district unless the district files a timely hearing request and can show by convincing evidence that its evaluation was comprehensive and appropriate or, alternatively, that the IEE obtained by the parents did not meet the school’s criteria. 20 USC §1415(b)(1) and (d)(2)(A). Under both state and federal law in the case of the right to a publically funded IEE, the burden of persuasion is upon the district.
After analyzing each argument, the hearing officer concluded that the parents’ request complied with the criteria under both state law and federal law. First, she found that the 16-month limit under state law only applied when the parents were seeking funding based on income eligibility. The applicable regulation under state law in the circumstances where the parent is seeking an IEE because he or she disagrees with the district’s evaluation is 603 CMR 26.04(5)(d), which requires the district to respond “in accordance with the requirements of federal law.” The hearing officer pointed out that federal law explicitly bars time limitations on a parent’s request. See 34 CFR 300.502(e)(2).
The hearing officer quickly dealt with the district’s second argument that it should be allowed to conduct its evaluation first. She found that the district had no such right. The fact that a district intends to schedule a re-evaluation in the near future does not extinguish the parent’s right to the IEE.
Finally, the hearing officer examined the district’s third ground for challenging reimbursement—that the parents did not explicitly disagree with either its 2012 or 2015 evaluations. While this issue has not been addressed by courts in this jurisdiction, the hearing officer noted that most courts that have addressed the issue have found that parents need not express disagreement to qualify for a publically funded IEE. Several courts have denied funding where a parent expressly agreed with the school’s evaluation, but the record in the instant case was inconclusive as to whether the parents agreed with or accepted either evaluation. Since the district had the burden of proof, its failure to produce convincing evidence that the parents explicitly agreed with the evaluations doomed its case. Accordingly, the hearing officer ordered the district to reimburse the parents for all out-of-pocket expenses previously paid to the Clinic for their son’s evaluation.
The more typical scenario occurs when the district raises the argument that their evaluations were comprehensive and appropriate or that the parents’ evaluation failed to meet its criteria. This presents a higher bar for parents even though the district would still have the burden of proof. Challenging the district’s evaluation would most likely require expert testimony to explain how the evaluation was deficient. Of note is the fact that the hearing officer in this case ordered reimbursement for the full cost of the IEE. If the district had agreed to fund the IEE, it would only have been required to pay the rate set by the state, a rate unchanged since 2004 and much too low for most evaluators to accept.
The Perils of Proceeding Pro Se
Pro se parents face a number of obstacles in pursuing their own case. While parents are very fortunate that hearing officers make every effort to ensure a fair hearing, emotions and a parent’s investment in their child’s case can, in some instances, work against them. At times the patience of the hearing officers can be tested by a pro se parent, but nonetheless, the hearing officers still ensure that the cases receive a thoughtful and careful review. At the same time, hearing officers expect that pro se parents will behave with appropriate civility.
The matter of Pentucket Regional School District, BSEA #12-8636, 21 MSER 22 (Figueroa 2015), has a long, rather tortuous procedural history going back to May 2012 when the parent filed a hearing request raising a number of claims including failure to provide FAPE, failure to properly evaluate, denial of eligibility, and reimbursement for cost of obtaining an IEE. Ultimately, the issue of reimbursement was resolved as part of a larger settlement agreement involving the student’s sibling. The parent then filed an amended hearing request removing her claim for reimbursement and declaring that she would proceed as her daughter’s representative now that her daughter had reached age eighteen. The parent also sought the additional relief of reimbursement and prospective funding of Landmark College, where the student was then enrolled. Pentucket objected to the amendment as the district understood that the student’s claims were foreclosed by the settlement agreement. Pentucket apparently prevailed on that issue, and the parent appealed the adverse outcome in federal court. After consideration, the federal court found that the parent had not exhausted her administrative remedies and remanded the case back to the BSEA for fact finding. Michelle K. v. Pentucket Regional School Distr., 79 F. Supp. 3d 361 (D.Mass 2015).
A first hearing on the remanded case took place in May 2015 on issues addressing the scope of the hearing and the statute of limitations. A second hearing took place in September 2015 addressing the substantive claims, including the district’s finding of no eligibility, Child Find issues, and the request for compensatory services. Neither the parent nor the student participated in the September hearing. In her decision, Hearing Officer Figueroa set forth a chronology listing all of the efforts the BSEA undertook to notify and involve the student and parent in the hearing process. The parent had participated in some of the earlier scheduling and prehearing telephone conferences and the hearing date in September was deliberately scheduled to accommodate the student’s schedule as she was then attending University of Massachusetts at Dartmouth. Nonetheless, after filing a last-minute motion for recusal, which was denied, neither the parent nor the student appeared for the hearing.
The parent had participated in an earlier telephone conference to discuss the issues to be determined at the September hearing. The four issues were: (1) whether Pentucket met its Child Find obligations; (2) whether the failure to identify the student as eligible for IDEA denied her FAPE; (3) whether Pentucket violated the student or the parent’s procedural rights; and (4) whether Pentucket owed the student or parent compensatory relief in the form of reimbursement for the student’s 2012-2013 year at Landmark College.
When a party fails to appear for a trial or motion hearing in a civil case in state or federal court, a judge would more than likely consider its rights to be forfeited. At the BSEA, however, hearing officers still feel an obligation to review the available evidence and make a decision in accordance with that evidence. In this case, the evidence included exhibits and oral testimony from both the May and September hearings, including testimony of the father who had been called as a witness by Pentucket.
The student had been enrolled in Pentucket from kindergarten through 12th grade. The parent first requested a special needs evaluation in 2011 as the student was completing her junior year. Although the statute of limitations found applicable to Child Find in the May hearing was two years, the hearing officer took pains to analyze and review the student’s history going back as far as kindergarten in addition to reviewing the steps the district took to fulfill its Child Find obligations. The hearing officer considered report card grades, teacher comments, attendance records, MCAS scores, and even SAT scores, as well as the evaluations conducted by the district in 2011 and the two evaluations obtained by the parent.
Pentucket convened a Team meeting to consider eligibility in October 2011. The Team found that the student placed in the average range of intelligence and performance but did require extra time for task completion in certain areas. Certain strategies, accommodations, and interventions were identified that would be available to both regular education and special education students. Overall, the Team found that the student did not present with a disability that qualified her to receive special education, but recommended placing her on a District Curriculum Accommodation Plan (DCAP) that granted her more time for quizzes and assignments. After receiving the district’s rejection, the parent obtained a speech and language evaluation from Massachusetts General Hospital’s Department of Speech, Language and Swallowing Disorders and Reading Disabilities which, after consideration by the Team, were found to be consistent with the district’s own testing and did not change its denial of eligibility.
In March/April of 2012, the parent obtained an evaluation from Neuropsychology & Education Services for Children & Adolescents (“NESCA”). A Team meeting was scheduled for May 9, 2012, but had to be cancelled due to a power outage at the school. The district proposed other dates for rescheduling, but these were never confirmed by the parent. The student graduated from Pentucket as a regular education student and the Team never considered the NESCA evaluation. Nonetheless, the hearing officer did consider it and found that its recommendations had, with minor exceptions, been addressed by the district through its DCAP. She also found that the district, through publications and direct handouts, had complied with its Child Find obligations.
In light of the non-participation of the student and the parent at the hearing, the hearing officer is to be commended for providing such a careful consideration of all the evidence. The resulting decision included a detailed recitation of procedural history and finding of facts which was obviously quite time consuming for the hearing officer to analyze and write. Again, it is noteworthy that this is in sharp contrast to a civil court’s summary dismissal of a case if a plaintiff refuses to attend a trial event without justification.
Pro Se Parent Must Behave with Civility and Comply with BSEA Rules
The patience of the hearing officer in Taunton Public Schools, BSEA #16-1127, 21 MSER 244, (Putney-Yaceshyn 2015), was severely tested by the behavior of the parent, who participated in the hearing by phone. Nonetheless, despite the parent’s non-participation in a number of scheduled events and the parent’s behavior at the hearing, which was so rude and belligerent that the hearing officer terminated the phone call, the hearing officer carefully considered the merits of the district’s motion to dismiss.
The parent originally filed with the BSEA on July 1, 2015. On August 3, 2015, a hearing officer granted Taunton’s motion for summary judgment, finding that the parent did not have educational authority during the time that the student was in the custody of the Department of Children and Families (“DCF”) and a special educational surrogate parent (SESP) had been appointed. Custody was returned to the parent on July 15th and on August 4th, the parent filed the instant hearing request naming Taunton, DCF, and the May Institute (“May”). Two days later, the parent filed a motion for recusal of the initial hearing officer. The hearing officer denied the motion but nevertheless submitted the case to the director of the BSEA for reassignment.
DCF and May filed motions to dismiss which were granted. The parent then failed to participate in two scheduled prehearing conference calls. A hearing was scheduled for September 22, 2015. The day before the scheduled hearing, Taunton filed a motion for postponement which was promptly denied. That same day, Taunton filed a motion to dismiss with prejudice. Because the parent informed the BSEA that he could not travel to Boston, the hearing officer made arrangements for him to participate by speaker phone. The parent immediately became belligerent and rude, continuously interrupting the hearing officer. After multiple warnings, the hearing officer terminated the phone call with the parent and continued the hearing without him.
Upon consideration of the merits, the hearing officer granted Taunton’s motion to dismiss with prejudice as to all claims relating to the time period when DCF and the SESP had educational decision making authority. With respect to claims after that period, the hearing officer ordered that they be dismissed without prejudice because of the parent’s non-cooperation. The hearing officer advised the parent that he could refile when he was prepared to comply with BSEA rules and procedures.
In this case, the parent’s extreme emotional upset caused him to lose his ability to engage in civil discourse and pursue his claims. It is hoped that the parent in this matter realizes that he was his own worst enemy and that he will be able to take advantage of the second chance granted by the hearing officer.
Inability of Expert to Opine on Appropriateness of Proposed Programs and Student’s Current Need for Therapeutic Placement Dooms Parent’s Case
We have often commented on the need for an expert to support parents’ claims, and the need for that expert to be as familiar as possible with the student, the program and services in the IEPs at issue, as well as the program and services in the parents’ desired placement. As parents typically have the burden of proof, a parent’s expert needs such familiarity in order to be credible and persuasive. In Sharon Public Schools, BSEA #16-00749, 21 MSER 267 (Scannell 2015), the pro se parent produced a treating psychiatrist who testified by telephone, but the expert had not seen the student recently and could not offer an opinion as to the student’s current need for the therapeutic placement sought by the parent. In light of the testimony of the district’s staff describing student’s positive progress in the in-district program, as well as the daughter’s stated preference to stay in her public school, the parent was not able to carry her burden of proof.
At the time of the hearing, the student was a junior at Sharon High School. She entered the high school as a freshman and was on an IEP during her time at the school. At a Team meeting in March 2015, the student’s difficulty remaining in class because of stress and her difficulty with focus were discussed, however she had been working towards remaining in class for longer periods. The resulting IEP proposed a full inclusion program with counseling and accommodations such as check-ins, additional time for assignments, short breaks and the ability to complete her assignments in the academic lab. The IEP contained emotional and social goals, as well as goals for organization, self-advocacy, and study skills. It also reflected that student wanted to graduate with her class in 2017. The parent accepted the IEP.
On May 1, 2015, the student was hospitalized at McLean Hospital where she was diagnosed with Bipolar Disorder. A Team meeting was held on May 29, 2015 while the student was still at McLean. The McLean staff recommended that the student transition to a therapeutic school upon her discharge. The district believed that it could provide an in-district program for her. The student was discharged from McLean on June 15, 2015 and began an outpatient course of Dialectic Behavior Therapy (“DBT”).
An additional Team meeting was held on June 24, 2015. The district proposed a new IEP calling for a partial inclusion program. The student would receive a portion of her classes in the district’s “Networks” small group classroom. At the hearing, the district’s staff described Networks as a supportive and therapeutic program. It consisted of a separate classroom located at the high school, but with its own entrance. It was staffed by a social worker, an instructional assistant and two special education teachers who were present for one period per day. Network’s paraprofessional would assist the student in the inclusion classes. The district’s proposed IEP (June 2015-March 2016) provided additional classroom support, increased counseling, additional accommodations, and increased academic support. The parent rejected the proposed IEP.
The student started her junior year at the high school. In September, the parent consented to an evaluation by the school which was completed in October. The school psychologist performed a psychological evaluation. The student’s full scale IQ score was found to be in the average range. The student and her mother completed questionnaires that yielded several at-risk and clinically significant scores in monitoring emotional responses, problem solving, shifting mindset or tasks, levels of anxiety, depression, and stress in interpersonal relationships. The student’s teachers also reported that the student had difficulty with shifting mindset, attention, anxiety, and peer interactions. The student’s counselor reported that the student was demonstrating improved self-control and better management of her moods. The counselor recommended that the student be allowed to leave the inclusion classes and access the Networks program when she was struggling emotionally. Educational test scores for math, reading, and writing fell in the average to superior range.
After its evaluation, the district proposed a new IEP (October 20, 2015 to October 19, 2016), which would provide the student with access to other clinical staff as well as the Networks staff. The Team determined that if the student needed more support, the IEP could be amended to supply an additional four academic blocks per day within the Networks program. Options to allow her to recover credit for two uncompleted courses were discussed. The parent also rejected this IEP.
At the hearing, the parent had the burden of proof to demonstrate that the two rejected IEPs at issue, the June 2015-March 2016 IEP and the October 2015-October 2016 IEP, were not appropriate. She faced a daunting task in light of the testimony from the district’s staff. The staff testified about the student’s progress since September, indicating that she was generally able to remain in the classroom and access learning without becoming overwhelmed or distracted. On a few occasions she did have to leave the classroom, but only towards the end of the school day. Staff also testified that the student had stated that she wanted to stay in the district and graduate with her class and that it was her mother who wanted the out-of-district placement. The hearing officer found the testimony of the social worker who had known the student since freshman year and had an extensive background in DBT to be significant. She was very familiar with the student and was currently seeing her every day. She provided a positive report of the student’s motivation and attendance.
The parent’s expert was the student’s treating psychiatrist during her six weeks at Mclean. He testified as to the student’s diagnosis and that she would experience mood swings and serious cycles of manic and depressive disorders that were unpredictable. He also testified that she would do better in small classes with staff that could manage her mood swings. The hearing officer found that these factors were included in the IEPs proposed by Sharon. The psychiatrist had not seen the Networks program and could not render an opinion about its appropriateness for the student. He also did not offer an opinion about the student’s current need for an out-of-district therapeutic placement, as he apparently had not seen her since her hospitalization.
The hearing officer concluded that parent did not meet her burden of proof and that the two IEPs were appropriate and offered FAPE in the least restrictive environment. She commended the district’s staff for its commitment to the student and at the same time she complimented the parent as a devoted and caring advocate for her daughter.
 Parent refers to the mother. The parents were divorced and the mother had sole educational authority.