Commentary on Massachusetts Special Education Decisions: 4th Quarter, 2016, by Daniel T.S. Heffernan:

June 28, 2017


The numerous decisions this quarter shed new light in some areas while others reiterate past principles. While tight school budgets and internecine battles among governmental entities over responsibility for providing essential services to students remain the norm, one trend that continues in the BSEA is moving to join state agencies. Two decisions this quarter involve district attempts to join the Massachusetts Department of Developmental Services (“DDS”) in claims seeking funding for residential placements. Arlington Public Schools and Wanda, BSEA #1700442, 22 MSER 221 (Reichbach 2016) and Boston Public Schools, BSEA #1702809, 22 MSER 239 (Figueroa 2016). Ludlow Public Schools, BSEA #1608619, 22 MSER 215 (Byrne 2016) involves the successful effort of a school district to move a student from a private placement to an in-district program. The district was successful in establishing the more restrictive placement provides FAPE in Springfield Public Schools and Cal¸ BSEA #1702629, 22 MSER 233 (Oliver 2016). The district’s wide latitude in upholding teacher assignment was reaffirmed in Mendon-Upton Regional School District, BSEA #1703303, 22 MSER 242 (Reichbach 2016). The hearing officer in Scituate Public Schools, BSEA #1702015, 22 MSER 244 (Figueroa 2016) ruled on myriad prehearing motions relating to discovery of privileged material, the adequacy of physician statements and whether Champa extends to IEPs.

Norton Public Schools and Rafael, BSEA #1609348, 22 MSER 212 (Byrne 2016) and Southwick-Tolland Regional School District, BSEA #1607800, 22 MSER 220 (Reichbach 2016) both involve unsuccessful requests for recusal of hearing officers, and define the necessary justification for recusal, as well as demonstrating the conscientiousness of the BSEA hearing officers in considering such motions. DESE’s assignment of school district financial responsibility was overturned in Northborough Public Schools and Marlborough Public Schools and DESE, BSEA #1609179, 22 MSER 201 (Oliver 2016) where the key issue was the pre-placement residency of the student of divorced parents who lived in different school districts. Rosa Figueroa enforced the “never darken my door” provision in a settlement agreement but left it open a crack in Lexington Public Schools, BSEA #1701925, 22 MSER 204 (Figueroa 2016). In conducting an initial eligibility assessment, the district was held not to be required to travel to an out-of-state wilderness program to do so in Mansfield Public Schools and Dee, BSEA #1700794, 22 MSER 253 (Oliver 2016). Lastly, the failure to timely challenge the denial of eligibility or services greatly limited the relief the hearing officer could order in Dennis-Yarmouth Regional School District, BSEA #1607923, 22 MSER 256 (Figueroa 2016).

BSEA Overturns DESE Assignment of District Responsibility

Under Massachusetts law, the school district where a child with a disability resides has financial and programmatic responsibility for providing that student’s special education. Generally, the district where a minor child “resides” is the same as the residence of his parents. A determination of residency is less straightforward in the case of divorced or separated parents who reside in different towns and a child in a residential placement.

Northborough Public Schools and Marlborough Public Schools and DESE, BSEA #1609179, 22 MSER 201 (Oliver 2016) involved a determination of the respective financial obligations of the mother’s school district (Northborough) and the father’s school district (Marlborough) to fund the student’s residential placement at the May Institute. DESE had issued an Assignment of School District Responsibility determination that programmatic and financial responsibility for student’s placement at the May Institute was to be shared equally between Marlborough and Northborough. DESE initially relied on 603 CMR 28(10)(3)(b), which provides:

when a student whose IEP requires an out of district placement lives and receives special education services at a special education school¼(t)he school district where the parent(s) or legal guardians resides shall have both programmatic and financial responsibility.

Subsequent to its initial decision, DESE was provided with a 2009 probate court order, which awarded primary legal and physical custody of the student to the father and visitation of one night per week to the mother. With this additional evidence, DESE’s assignment remained the same, but it was then grounded upon 603 CMR 28.10(8)(c)(5):

If the student’s parents live in two different school districts, such school districts shall be jointly responsible for fulfilling the requirements of 603 CMR 28.00 except if the student actually resided with either parent immediately prior to going into a living situation described in 603 CMR 28.10(3) or (4) or the parents are divorced or separated and one parent has sole physical custody, then the school district where the student resided with the parent or the school district of the parent who has sole physical custody shall be responsible and shall remain responsible in the event the student goes into the care or custody of a state agency. (Emphasis supplied)

DESE subsequently received a 2010 probate court judgment awarding “primary physical custody” of the student to the father, with joint legal custody to both parents. The judgment also accorded the mother visitation from Thursday after school to when school begin on Friday. DESE again stood by its ruling. DESE reasoned that since the father had primary but not sole physical custody prior to the placement at May, and the student stayed overnight during the week with mother, the student “resided” with both parents prior to the placement at May.

The hearing officer disagreed. He relied on the “gestalt” and case specific view of residence. In that regard, a child will be held to “actually live” in the town where the center of the student’s domestic, social, and civil life are situated. George H. & Irene L. Walker Home for Children, Inc. v. Franklin, 416 Mass 291, 295 (1993). In applying that reasoning to special education cases, the BSEA takes into account the location where the child sleeps, gets ready for school, does homework, participates in community activities, and attends family events. See In Re: Amesbury Public Schools, BSEA #1406933, 20 MSER 218 (2014). Also, the probate courts use “primary” and “sole” custody interchangeably. Pursuant to MGL Chapter 208—Divorce, Section 31—Custody of Children, only two types of physical custody are defined:

“Shared physical custody”, a child shall have periods of residing with and being under the supervision of each parent; provided, however, that physical custody shall be shared by the parents in such a way as to assure a child frequent and continued contact with both parents.

“Sole physical custody”, a child shall reside with and be under the supervision of one parent, subject to reasonable visitation by the other parent, unless the court determines that such visitation would not be in the best interest of the child. (Emphasis supplied)

See Cesso v. Cesso, 2011 Mass. App. Unpub. LEXIS 917 (2011).

The hearing officer found that this situation clearly fell into the category of sole physical custody. One overnight visit of approximately 17 ½ hours (less than ¾ of one day per week) does not constitute “residing” with the mother. Therefore, the Hearing Officer found that the father’s district (Marlborough) had sole fiscal responsibility for the May placement.

The BSEA Upholds a Settlement Agreement Terminating the District’s Programmatic and Fiscal Responsibility

Lexington Public Schools, BSEA #1701925, 22 MSER 204 (Figueroa 2016),[1] involved the validity of a “never darken my door” clause in a settlement agreement in ruling on Lexington’s motion to dismiss the parents’ subsequent hearing request. In 2013, the parties entered into a settlement agreement placing the student at the Learning Prep School in Newton, Massachusetts and providing that the district’s fiscal and programmatic responsibility for the student would end on June 30, 2015. In September 2016, parents filed a hearing request seeking to set aside the settlement agreement, as well as seeking orders to reimburse the parents for unilateral placements and order Lexington to fund a private therapeutic placement for student. The parents’ case centered on their contention that the student’s circumstances had substantially changed since the agreement was signed in 2013, invalidating the end date of the district’s responsibility.

The student had moved to Lexington from overseas in August 2011 and was 17 at the time of the hearing. The student struggled academically and socially upon entering the Lexington schools. Private evaluators diagnosed the student with depression, anxiety, oppositional behavior, and nonverbal learning disability. Concerns were raised that the student was cutting herself. From December 2012 through April 2013, the student was tutored at home in response to her psychiatrist’s concern about her elevated level of depression. In an act that became a significant factor in the hearing officer’s ruling on the motion to dismiss, the parents rejected Lexington’s offer of placement in a therapeutic program. Instead, the parents unilaterally placed the student at Learning Prep and filed for hearing.

The parties settled the dispute. The settlement agreement covered from when the student began at Learning Prep to the student’s twenty-second birthday in 2021. The district agreed to fund Learning Prep up to June 30, 2015 in exchange for relinquishing any rights to services or funding thereafter. Several clauses in the agreement referenced the “never darken my door” condition, such as:

The Parents agree that Lexington’s financial and programmatic responsibility under state and federal laws and regulations for the student’s education shall terminate as of June 30, 2015. PARENTS specifically waive the right to re-enroll the STUDENT in any of the Lexington Public Schools. PARENTS specifically waive the right to seek any educational services and/or financial compensation from LEXINGTON after June 30, 2015.

The student struggled and was placed in a residential treatment program in February 2014 where she was diagnosed with Eating Disorder NOS, Post-Traumatic Stress Syndrome, Depressive Disorder NOS, and Pervasive Developmental Delay-NOS. The student made unsuccessful attempts to transition back to Learning Prep and was eventually re-hospitalized. She was also unsuccessful in attending a residential therapeutic program in Utah, resulting in multiple hospitalizations. In March 2015, she entered McLean Hospital’s DBT program, immediately eloped, and was hospitalized at Massachusetts General Hospital.

On March 6, 2015, the student was admitted to Franciscan Children’s Hospital (Franciscan) where she made several suicide attempts and was kept in seclusion. Franciscan was unable to stabilize the student’s behavior and in April 2015, she was transferred to the Worcester Recovery Clinic’s (Worcester) inpatient recovery program. At Worcester she received intensive individual and family therapy. In October 2015,the student began attending Dearborn Academy’s STEP (Dearborn) program as a day student.

The student applied to, but was rejected by, several private therapeutic day programs. She was, however, admitted to CASE Collaborative High School and Riverside Community Day Program. In September 2016, parents filed the instant hearing request seeking public funding for either of those placements.

While not every hearing officer believes that they have the authority to enforce a settlement agreement, this hearing officer firmly believed that she did, relying on prior rulings of the BSEA, including her own. See In Re: Longmeadow Public Schools (Ruling on Longmeadow’s Motion to Dismiss), BSEA #072866, 14 MSER 249 (Crane 2008); In Re: Peabody Public Schools, BSEA #096506, 15 MSER 154 (Crane 2009); In Re: Marlborough Public Schools, BSEA #113650, 17 MSER 201 (Figueroa 2011); In Re: Norwood Public Schools, BSEA #060214, 11 MSER 161 (Crane 2005). To hold otherwise would undermine the integrity of the BSEA hearing process whereby many matters are resolved through settlement agreements. As the First Circuit Court of Appeals held in South Kingston School Committee v. Joanna S. et al, #14-1177 (Barron 12/09/14), “¼in addition to providing an administrative process for addressing such disputes, Congress also expressly allowed parties to resolve them through settlements. And when parties do so, the settlements must be given appropriate effect.”

The parents’ argument that “changed circumstances” invalidated the agreement was unavailing for two reasons. First, the broad language of the agreement suggested that the parents knew or should have known that future claims for services would be invalid. Second, the Hearing Officer found that the student’s significant mental health and emotional struggles were well-known at the time of the agreement, shown by Lexington’s offer of a therapeutic placement prior to the agreement. The student’s struggles after the agreement was signed, while extremely serious, were nevertheless exacerbations of her previous conditions.

The hearing officer left the door open a crack, however, for two avenues for the parents to pursue funding and placement. First, she accorded the parents ten days to decide if they wished to proceed on the grounds that they did not understand the agreement. Second, she concluded her decision by stating: “I note that this Ruling is limited only to educational responsibility for Student as it pertains to Lexington, and does not address potential responsibility or lack thereof with respect to any other district.” She therefore suggested that if the student and family moved to another school district, that district might not be able to avail themselves of the never darken my door provision of the agreement with Lexington.

Two Motions for Recusal Are Denied, but One Gets a Different Hearing Officer Anyway

There has been a steady stream of motions to recuse hearing officers. While the right to seek recusal is an important and well-established one, it is important to understand the factual and legal requirements for such recusal so as to not waste everyone’s time and resources in responding to unfounded requests. In our experience, the BSEA hearing officers are keenly aware of any possible cause for recusal and will do so of their own volition if there is any credible basis for it. This quarter, Norton Public Schools and Rafael, BSEA #1609348, 22 MSER 212 (Byrne 2016) and Southwick-Tolland Regional School District, BSEA #1607800, 22 MSER 220 (Reichbach 2016) provide good overviews of the two-part standard for recusal and demonstrate the conscientiousness of the BSEA hearing officers in examining their ability to be impartial. Upon receiving a request for recusal, the decision maker must first examine her conscience to determine whether she could preside over the matter without bias. Second, the hearing officer must determine whether the moving party has a reasonable basis, supported by facts, for their concern over her impartiality. To establish a valid case for recusal, the moving party must identify facts that would create a reasonable question in the mind of a well-informed person about the ability of the decision maker to be impartial. Massachusetts and federal standards are essentially “appearance” standards, meaning recusal should occur if there is a reasonable appearance of bias. While one might believe that a hearing officer should grant such motions liberally to avoid any appearance of resentment over being accused of bias as well as to relieve themselves of dealing with potentially difficult litigants, it is important that hearing officers only grant such motions when they are valid. Otherwise litigants could “shop” for a decision maker whose “style” they prefer or whose “record” they believe is more favorable to their position, supporting perceptions of “rigging” or favoritism and leading to diminishing public confidence and increasing administrative inefficiency. Wachusett R.S.D., BSEA #09-2526, 14 MSER 367 (2008).

The purported basis for the recusal motion in Norton Public Schools and Rafael, BSEA #1609348, 22 MSER 212 (Byrne 2016), was a claim that the hearing officer had developed a bias against the advocate representing the family from a prior matter involving the same hearing officer and advocate. The hearing officer noted “the correspondence, formal filings and joint exhibits reflect persistent misunderstandings, mischaracterizations and misjudgments on the part of the Parents’ advocate that have posed an undue burden on the time, effort and purse of School personnel, School’s counsel and BSEA staff without corresponding benefit to the Student.” In addition, the Hearing Officer noted that the district’s motion for costs and sanctions was under advisement. The advocate identified 22 motions that had not been ruled upon. However, half of these were not motions but were instead such things as a status report, a letter complaining about the actions of the district’s counsel, and discovery requests. The remaining actual motions were properly addressed. As to lingering bias from the earlier matter, the hearing officer stated the only similarity to the prior matter was the conduct of the advocate.

However, the hearing officer did not want the parents’ confidence in the integrity of the hearing process to be undermined. Therefore, while she denied the motion, she referred the case for administrative reassignment.

In Southwick-Tolland Regional School District, BSEA #1607800, 22 MSER 220 (Reichbach 2016), the parents’ counsel claimed the bias of the hearing officer was manifest in the pre-hearing conference where the hearing officer appeared to misstate the law in agreeing with the school district and denying the parents’ counsel request the hearing to occur in Springfield and not Worcester. Noting that the parents’ attorney’s behavior fell short of professional norms, the hearing officer nonetheless held that she would not attribute that behavior to his clients. Having examined her conscious and any objective basis for the questioning of her impartiality, the hearing officer held that she would be able to preside over the matter without prejudice.

The District Successfully Moves a Student from a Private Placement to an in-District Program

Ludlow Public Schools, BSEA #1608619, 22 MSER 215 (Byrne 2016) involved an 11-year-old student with autism spectrum disorder who moved from Holyoke to Ludlow in March 2014. At the time of his move, he was attending the Center School (“Center”), a private approved special education school in Holyoke. The Ludlow team agreed in June 2014 to extend his placement at Center. In September, Center reported that the student was ready to transition to a less restrictive program. The team reconvened in February 2015 to consider the three-year evaluation that had been conducted jointly by Center and Ludlow. The consensus among the evaluators was that the student, while still requiring significant supports, was ready to transition to a less restrictive setting. Ludlow developed an IEP, behavioral intervention plan (“BIP”), and transition plan calling for the student’s gradual integration into Ludlow’s Structured Individualized Program (“SIP”). Parent’s educational expert conducted an evaluation with an observation and found that most of the student’s academic and learning scores were in the average range and consistent with his cognitive potential. Nevertheless, she opined that he needed to remain in the highly structured and therapeutic setting of Center. Also, the student was diagnosed with a colonic neuropathy, which required close monitoring. Ludlow proposed a robust IEP that substantially mirrored the program at Center. The parent failed to respond to the IEP and it was therefore considered rejected. Ludlow filed for hearing and therefore bore the burden of proving that its IEP provided FAPE.

The parents’ attempt to keep the student at Center was doomed for four reasons. First, all the evaluators recommended the same type of educational service and setting. Second, Center personnel, who had worked with the student for years, testified that the student was ready to leave Center and transition to a less restrictive environment. Third, there was convincing testimony that the student would benefit from more socially adept peers. Lastly, the robust IEP provided for significant services while allowing for contact with typical peers and greater resources. These factors, combined with the dearth of well-founded testimony supporting his remaining at Center, led the hearing officer to find that Ludlow’s proposed in-district program would provide FAPE.

Joining DDS to Assist with Residential Placement

The BSEA is authorized to assert jurisdiction in appropriate situations over other state agencies pursuant to MGL c. 71B, §3 and 603 CMR 28.08(3). That law and associated regulations empower hearing officers to join state agencies if services from those agencies may be necessary to provide “complete relief” to the student. Joinder is appropriate in situations where the student will only be able to access or benefit from the school district’s special education program if services over and above those that are the responsibility of the school district need to be provided by the human services agency. The overarching mandate of MGL c.71B, §3 is to ensure that a single agency, the BSEA, is empowered to determine all necessary services for a child in one proceeding. However, the BSEA may only act in accordance with the joined human services agency’s own rules, regulations, and policies.

The district in Arlington Public Schools and Wanda, BSEA #1700442, 22 MSER 221 (Reichbach 2016)[2] sought to join the Massachusetts Department of Developmental Services (“DDS”) to the proceedings arising out of the parents’ claim for residential placement for their nineteen-year-old daughter.

The student had been diagnosed with hypoxic ischemic encephalopathy secondary to perinatal asphyxia, spastic cerebral palsy, and cortical visual impairment. The student attended the Cotting School, an approved private special education program, until her transfer as a day student to the Perkins School for the Blind (“Perkins”), another approved private school, in 2006. In their 2016 hearing request, the parents sought residential placement at Perkins.

Wanda was eligible for DDS services and since 2013 had been receiving family support services through a joint program of the Department of Elementary and Secondary Education (DESE) and DDS. The goal of the DESE/DDS program is to prevent a more restrictive placement such as a residential placement.

In opposition to the motion to join, DDS stated it was already providing the most robust services it could and cited its regulations that DDS shall not provide residential supports for children under 22 years of age who are eligible for such services from a school district. The hearing officer agreed that should she order residential placement for educational reasons, she would be without authority to order DDS to contribute to that. However, should she not order residential placement, the question of what other services DDS may need to provide was one of fact that could not be determined at a pre-hearing stage. Therefore, she allowed the motion to join DDS.

The hearing officer in Boston Public Schools, BSEA #1702809, 22 MSER 239 (Figueroa 2016)[3] ruled differently in a similar case where the parent filed her hearing request to move her daughter from day to residential at her private placement, Cardinal Cushing School (“Cushing”). The 18-year-old student had Down syndrome, autism spectrum disorder, and communication, emotional, health, and intellectual disabilities. Similar to the student in Arlington, the student was receiving services through the DESE/DDS program. DDS advanced the same opposition to joinder as it did in Arlington. The hearing officer acknowledged her lack of authority to order DDS to pay for residential placement. However, the hearing officer denied Boston’s motion to join DDS because Boston had failed to articulate what additional services DDS might be ordered to provide if the Hearing Officer did not order residential placement. The Hearing Officer offered to reconsider her decision at hearing if Boston introduced evidence about what services DDS could offer if the student remained in her day placement.

While these decisions do not leave the students without resources for funding the recommended program, and we have no quarrel with the hearing officers’ application of law and regulations to the facts of the cases, we still lament these continued games of “hot potato” among governmental entities involving students with significant needs. Clearly, all the available resources and expertise should be brought to bear to help school-aged children regardless of what public budget is tapped and an entity, such as the BSEA, should have expanded jurisdiction and authority over all relevant state agencies that may be obligated to provided services to school-aged students.

From our experience handling numerous cases seeking 24/7 therapeutic placements, where agencies such as the Department of Mental Health (“DMH”) or the Department of Children and Families (“DCF”) are involved, we offer this note of caution—it often involves the bitter and the sweet. While it makes sense for families to welcome funding and resources from all sources and avoid the risk and cost of pushing through to a decision by the BSEA on whether the school district should be fully responsible, the involvement of state agencies can come with limitations and strings attached. For example, DMH or DCF may offer to provide residential services through placement in one of its stand-alone group homes, which are not integrated with therapeutic schools—a problem for students who need all-waking-hour services in a single therapeutic milieu where all service providers are focused on the same goals, using consistent strategies, and providing the same supports and accommodations. Moreover, a “stand-alone” group home facility is likely, due to a policy adopted by DCF and DMH a few years ago, to have a mixed population of both DCF and DMH clients, making it highly possible—given the variant missions of those agencies—that the peer grouping will be inappropriate. Also, even if one accepts placement in such a facility, the missions and mandates of the state agencies do not necessarily align with and may conflict with the mission and mandate of IDEA. That difference often leads to the state agency pressing for termination of the residential service before a return to a less restrictive environment would be appropriate under IDEA. Finally, once a student is placed in a DCF or DMH residential facility, there can be significant battles over whether the student has stay-put rights to the services or placement provided by the agency. In our opinion, stay-put rights should be applied in virtually any case where a BSEA proceeding is initiated to establish a need for a residential placement in order to make effective progress and where a state agency has been providing the student with residential services. See Lowell Pub. Schs. and Mass. Dept. of Children and Families, BSEA # 12-1912, 17 MSER 322 (Crane, 2011).

No Harm and Therefore No Relief in Boston’s Failure to Comply with Evaluation Deadlines

Boston’s delays in conducting an initial evaluation and eligibility determination of the student in Boston Public Schools, BSEA #1702840, 24 MSER 225 (Figueroa 2016)[4] led the parent to file for an expedited hearing to force Boston to comply with the requisite timelines.

The student was a Spanish-speaking four-year-old boy who had experienced serious lead poisoning. A November 2015 private evaluation diagnosed the student with mixed receptive and expressive language disorder and ADHD. The evaluator recommended an array of school services for the student. At the time, the student attended Head Start. Sometime in the spring of 2016, the parent went to enroll her son in the Boston public schools. She maintained that she did not hear back from Boston. Near the end of the school year, the parent’s attorney contacted Boston’s counsel and requested that she look into the matter. She reported that the mother had not requested an evaluation or indicated that her son had a disability but had simply entered him into the lottery for pre-school and he was not given a spot. Boston agreed to conduct an initial evaluation but said it would occur after the summer. However, Boston failed to provide the evaluation consent form to the parent. Parent’s attorney inquired about the consent forms and status of the evaluation in late September. When parent reported that she still had not received the consent forms, the parent’s attorneys filed for an expedited hearing on October 7, 2016. The consent forms were received by the parent and returned to Boston along with Boston’s response to the filing.

In a preliminary telephone conference among the parties and hearing officer, Boston stated that it would provide student interim services at his Head Start program while the evaluations were being conducted. Parent’s attorney offered to withdraw the expedited status of the hearing request upon the receipt of this written plan and clarification of the evaluation timeline. Despite numerous requests for these, Boston never provided them. Boston responded that some evaluations had been conducted and identified some of the people who would be invited to the initial team meeting, but still failed to set forth a clear timeline for conducting the evaluations or determining the student’s eligibility for services. Boston refused the parent’s offer to have the matter decided on documentary evidence and the matter therefore proceeding to the expedited hearing.

At the hearing, Boston finally articulated its specific plan for evaluating the student and holding a team meeting. In addition, instead of offering interim services until the initial team meeting, Boston stated that if the student was found eligible, it would provide compensatory services dating back to the beginning of the 2016-2017 school year.

While the hearing officer found that Boston had failed to comply with the requisite timelines, that delay would be de minimis and rectified by Boston’s offer for compensatory services. With the parent having forced Boston to finally conduct the initial eligibility determination for this student by filing the hearing request and pursuing the expedited decision, there was no relief to be ordered by hearing officer.

The District Is Successful in Establishing that a More Restrictive Placement Is Appropriate

Springfield Public Schools and Cal¸ BSEA #1702629, 22 MSER 233 (Oliver 2016), involved a 12-year-old boy with ADHD, learning disabilities, and mood disorder. At the time of the hearing, he was repeating sixth grade because he had failed all of his classes the previous year. He had a history of behavioral problems including assaults and was hospitalized. There were three manifestation determination meetings stemming from the student’s behaviors. For the 2015-2016 year, the student attended the Kiely Middle School’s Social and Emotional Behavioral Supports (“SEBS”) program. For the IEP period of March 2016 to March 2017, the district proposed placement in a substantially separate program at the district’s Public Day Middle School (“PDMS”). Parent accepted the substantially separate program and services of the IEP but rejected the PDMS placement. The parent filed a hearing request in July 2016 and insisted that he would proceed pro se (without an attorney). However, on the first day of the hearing in September 2016 the parent stated he wanted counsel. The hearing officer refused to continue the matter but offered the parent the opportunity to withdraw his hearing request—which the parent did without prejudice.

In September 2016, the student was attending Balliet Middle School (“Balliet”) pursuant to a short term Interim Alternative Educational Setting (“IAES”) placement due to disciplinary issues. Parent wanted the student to remain in this placement. The district offered to have the student remain at Balliet if parents would waive all C grid (outside the classroom) services and agree to have the student undergo a risk assessment. Parent accepted only the placement and risk assessment. The district then filed for an expedited hearing seeking a determination that the PDMS program provides FAPE. Parents retained counsel.

The PDMS program was a physically substantially separate therapeutic program. Balliet was a full inclusion program and not a therapeutic special education program. No other student at Balliet received any C grid services and the Balliet program was not under the auspices or direction of Springfield’s special education department.

The district carried its burden, as the party seeking a change of placement under Schaffer v. Weast, 126 S. Ct. 528 (2005), of proving that PDMS provided FAPE in the least restrictive environment. The student had a long history of lack of success in the inclusion model and had arrived at a point where he was failing all his academics and experiencing escalating emotional dysregulation. Parent’s claim that the student was doing well at Balliet was undercut by the fact that of the possible 16 school days at Balliet, the student had attended school on only 8 days. Also, the parent’s position in the current hearing, seeking an inclusion placement, contradicted his recent prior position of seeking a more restrictive setting. Parent’s attorney sought to undercut some of the district witnesses on the grounds that they did not know the student and therefore their testimony was based upon hearsay. The hearing officer noted that hearsay is permissible in BSEA proceedings and the testimony of those witnesses was focused on the components of the respective programs.

Districts Have Wide Discretion in Assigning Classroom Teachers

Mendon-Upton Regional School District, BSEA #1703303, 22 MSER 242 (Reichbach 2016), reaffirmed the wide latitude school districts have in assigning personnel. The parents sought an order seeking reassignment of their five-year-old from one teacher from another seeking placement “with a teacher who is patient and compassionate with students who have IEPs” and a reprimand of the school principal and superintendent. The district filed a motion to dismiss for failure to state a claim upon which relief can be granted on the basis that the BSEA did not have jurisdiction.

The hearing officer referenced the decision in Pentucket Regional School District, BSEA #106783, 16 MSER 369 (Berman 2010) that:

It is well-established that schools, and not parents, have the discretion to assign disabled students to particular classrooms (including general education classrooms) so long as the IEP of a child with disabilities can be implemented in the chosen classroom. Moreover, hearing officers may not second-guess a school’s choice of personnel, provided the staff persons at issue have the professional credentials and qualifications required by statute and regulation, and are appropriately qualified to implement the IEP services.

The hearing officer allowed the motion to dismiss, holding that the BSEA had no jurisdiction over the claim because there was no allegation that this reassignment refusal impacted FAPE. While the matter was not well-pled or pursued by parent, it nevertheless demonstrates what an extremely high bar is set on challenges to the school district’s assignment of personnel.

A Flurry of Motions Decided Addressing Privileged Records, Physician Statements, an Extension of Champa, and Stay Put

The hearing officer in Scituate Public Schools, BSEA #1702015, 22 MSER 244 (Figueroa 2016) ruled on several prehearing motions. The underlying case involved a six-year-old with severe mood dysregulation, dyslexia, and ADHD. In January 2016, he was placed in a substantially separate program at the Therapeutic Learning Center kindergarten (“TLC”) in Marshfield pursuant to an IEP. His teacher maintained that he flourished in this program. Parents filed their hearing request seeking an extended evaluation at South Shore Educational Collaborative (“SSEC”). The district rejected two Physician Statements for Temporary Home or Hospital Education. At a November 2016 prehearing, the parties agreed to various evaluations and resolved issues regarding transportation and communication. The post prehearing order noted that stay-put was at TLC. The parents subsequently presented a third physician statement and student remained out of school. The pretrial motions included:

· A  motion to quash the subpoena duces tecum of Diane Bartlett. Ms. Bartlett was the parents’ former advocate/consultant. Because she was not an attorney and she no longer represented the family, her records were not privileged and the motion to quash was denied.

· Parents Motion to Quash Subpoenas of various “providers.” While the information sought was relevant, the hearing officer credited concerns about potential violations of the Health Insurance Portability and Accountability Act (“HIPAA”). When such disclosure is sought, the hearing officer must balance the need for the disclosure and the threat of disrupting the therapeutic alliance between the student and provider. However, her, the parents had waived this privilege by relying on information and recommendations allegedly made by the providers. While ordering its production, the hearing officer also imposed restrictions on their dissemination, barring copying of the records and limiting their dissemination to those qualified to offer an opinion.

· Stay Put order at TLC. While the last agreed upon IEP would typically be dispositive, the hearing officer considered the physician statements. Reflecting tighter scrutiny of physician statements, the hearing officer found that the statement failed to meet regulatory requirements of 603 CMR 28(3)(c):

° (c) Educational services in home or hospital. Upon receipt of a Physician’s written order verifying that any student enrolled in a public school or placed by the public school in a private setting must remain at home or in a hospital on a day or overnight basis, or any combination of both, for medical reasons and for a period of not less than 14 school days in any school year, the principal shall arrange for provision of educational services in the home or hospital. Such services shall be provided with sufficient frequency to allow the student to continue his or her educational program, as long as such services do not interfere with the medical needs of the student. The principal shall coordinate such services with the Administrator of Special Education for eligible students. Such educational services shall not be considered special education unless the student has been determined eligible for such services, and the services include services on the student’s IEP.

The physicians failed to state any medical reason why the student must be educated in the home and, in fact, gave contradictory reasons for the need to be educated at home, one citing the legal conflict between the school and parents. Therefore, stay put was at the TLC.

· Parents’ Motion for Protective Order to Cover Juvenile Court Truancy Matter. The fact that the student had been out of school for some time, the basis of the truancy matter, was relevant to the matter before the BSEA and should therefore be produced.

· Parents’ Motion for Public Records of Private Settlement Agreements. The parents mistakenly relied on Champa v. Weston Public Schools, 473 Mass. 86 (2015), which addressed the disclosure of redacted settlement agreements, to compel the disclosure of the IEPs of other students with similar diagnosis to their student. The motion was denied because the other IEPs were private records and furthermore irrelevant to their student’s claims. Importantly, the requested IEPs did not seem to belong to actual or proposed peers of the student, and so the request was disposed of differently than most requests for peer IEPs.

A Closer Look Needed to See if a Student Was Properly Terminated from a Charter School

The parent filed her hearing request in Fall River Public Schools and Yuri, BSEA #1703425, 22 MSER 250 (Reichbach 2016) against the district and the Argosy Collegiate Charter School (“Argosy”). The parent alleged that both entities had denied the student FAPE for various reasons and in addition, Fall River had failed to provide FAPE by failing to offer alternatives to the Stone School, the in-district program proposed by Fall River. The student had been an inpatient at the Community-Based Acute Treatment unit of Child and Family Services, Inc. in New Bedford for two months due to escalating anxiety and hallucinations. 603 CMR 28.10(6) provides the procedure to be followed when a program school, such as Argosy, determines that the student may need an out-of-district placement. This regulation anticipates a collaborative process among the charter school, school district of residence, and the parents. The hearing officer denied the district’s motion to dismiss, saying she had no evidence at that stage to determine whether the Stone School was appropriate for the student, or if some compensatory services were owed and by which entity. Because the parent met her burden to raise factual allegations plausibly suggesting an entitlement to relief, the motion was denied.

The District Cannot Be Compelled to Travel to an Out of State Program to Evaluate a Student

The district sought to dismiss the parents’ hearing request in Mansfield Public Schools and Dee, BSEA #1700794, 22 MSER 253 (Oliver 2016) for the parents’ failure to produce the student for evaluation in Mansfield. The 15-year-old student spent her entire public school career as a regular education student and had never been referred for a special education evaluation by anyone. Until she stopped attending school on March 7, 2016, she had not had a single absence that school year. After a confrontation with her parent, the student was hospitalized and eventually enrolled by the parents in a wilderness program in North Carolina on March 10, 2016. There, a private psychological assessment revealed diagnoses of Major Depressive Disorder, Social Anxiety Disorder, Oppositional Defiant Disorder, and other trauma related disorders. Parents requested that Mansfield convene a team to consider this evaluation and identify an appropriate placement for her once she completed the wilderness program. Mansfield refused unless and until it could perform its own evaluation. The parents, with notice to Mansfield, unilaterally placed the student at Sedona Sky Academy in Arizona beginning on June 8, 2016. Mansfield formally sought the parents’ consent for initial school-based testing. Parents signed the consent on June 5, 2016 but the district did not receive the consent until July 20, 2016. Mansfield took the position that it need not test student out of state and the parents refused to interrupt her program and bring the student back to Mansfield for testing.

The hearing officer ruled in Mansfield’s favor, finding that the parents effectively denied Mansfield the opportunity to conduct an initial evaluation. The crucial factor in the decision was the fact that the student was not yet eligible for special education and what was sought was an initial evaluation and eligibility determination. The hearing officer stated: “If [student] had been evaluated by MPS, found eligible for special education/related services, and had an IEP prior to her out of state residential placements, my ruling would be very different.” Nothing in the law mandates that a district must travel across the country to conduct an initial evaluation. The hearing officer cited federal case law which has uniformly held, consistent with 34 CFR 148(d)(2), that parents forfeit their right to reimbursement for a unilateral placement if they render the child unavailable for evaluation. The hearing request was therefore dismissed with prejudice.

Failure to Timely Press Issues of Eligibility and Services Severely Ties the Hands of the Hearing Officer

Dennis-Yarmouth Regional School District, BSEA #1607923, 22 MSER 256 (Figueroa 2016), involved a hearing on the issues that had been winnowed down by pre-hearing motions. The remaining issues were the district’s failure to provide Section 504 services resulting in the student’s unpreparedness for college; whether the district failed to properly implement the student’s Section 504 plan; and whether the student was entitled to reimbursement for her post-high school year at Brewster Academy.

The student graduated from Dennis-Yarmouth High School in June 2014. She was a participant in extracurricular activities such as sports and the yearbook. Starting in 2004, the parents voiced concerns about her possible learning disability. After assessments in 2004 and 2007, the student was found ineligible for special education services. The student, however, received accommodations through Section 504 plans in 2013 and 2014. The student underwent private evaluations with a neuropsychologist in 2012 and a speech language pathologist in 2013. Both evaluations, calling for IEP services in addition to accommodations, were forwarded to the district in March 2013. Contemporaneous teacher reports raised concerns about the student’s academic struggles despite her excellent behavior and effort. Significantly, the parents denied the district’s request to conduct their own evaluations, basing this on the fact that she had already undergone comprehensive evaluations. Therefore, at the team meeting, the district did not have any school-based evaluations.

The team acknowledged that the student had a disability—dyslexia. However, it denied eligibility on the grounds that she was making effective progress in her classes, some of which were honors courses. The team maintained that she did not need specialized instruction. They suggested that the student take some non-honors courses, but the student rejected that. The student consistently sought outside assistance from her teachers when she needed it. Parents voiced their dissatisfaction with this finding to the school committee and superintendent but did not request mediation or file for hearing with the BSEA.

The district offered a Section 504 plan in May 2013. As part of the plan, tutorials were provided to the student. Neither the student nor parent contested the Section 504 plans. The parent testified that an advocate advised her that a Section 504 plan would be more helpful with college.

The student found herself unprepared emotionally and academically to attend college even though she was admitted via early decision to Assumption College and Worcester State University. Parents enrolled her for a postgraduate year at Brewster Academy. Prior to her high school graduation, parents sought confirmation that the district would fund the year at Brewster Academy. The district denied this request.

The hearing officer was convinced that as a result of her disability she had not made effective progress by the time she was set to graduate. Her requests for help were minimized or dismissed. However, the student should have filed for hearing earlier and the failure to do so tied the hands of the hearing officer as to remedies she could impose. Since compensatory education is an “equitable” remedy, she did employ that as a potential vehicle for awarding some relief.

The district should have known prior to graduation that the student was still in need of additional services. However, several procedural missteps undermined the case. First, the finding of no eligibility in 2013 was not contested. Also, the parents’ two hearing requests in 2014 raised those claims, but were dismissed for failure to prosecute. The student then graduated, effectively ending her special education eligibility. Second, the parents accepted the Section 504 Plans offered by the district with the mother testifying that she was grateful for them and thought they were appropriate. When the parents returned to the BSEA with the instant hearing request, all of the claims under IDEA were lost and only limited claims under Section 504 remained. The Section 504 plan called for reading and writing tutorial services to be offered through the end of June 2014 but they stopped in May 2014. The hearing officer awarded compensatory services equivalent to those that should have been provided pursuant to the Section 504 plan but ordered no other relief. n

[1] The parents were represented by the commentator’s colleague.
[2] The Parents were represented by the commentator’s colleagues.
[3] The Parent was represented by the author of this commentary.
[4] The Parent was represented by the author of this Commentary.

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