Commentary on Massachusetts Special Education Decisions: 4th Quarter, 2017, by Daniel T. S. Heffernan:
June 05, 2018
This quarter yielded a relatively low number of decisions, including only one from a full hearing. There were many instructive decisions further delineating the limited scope of the BSEA’s jurisdiction, including yet another attempt to invoke its jurisdiction to enforce a settlement agreement. Wellesley Public Schools, BSEA #1800903, 23 MSER 191 (Byrne 2017). The BSEA refused to assert jurisdiction when the relief sought was an order awarding school credits or barring certain school staff from the student’s IEP Team. Hampden-Wilbraham Regional School District, BSEA #1710699, 23 MSER 172 (Putney-Yaceshyn 2017). Further, the BSEA asserted partial jurisdiction in a case involving the intersection of English Language Learner and special education services. Worcester Public Schools and Fernando, BSEA #1800970, 23 MSER 183 (Reichbach 2017). Several decisions demonstrate that while preliminary motions, such as motions to dismiss and for summary judgment, can dispose of claims, Waltham Public Schools and Dorian, BSEA #17020236, 23 MSER 187 (Reichbach 2017), others produce little “bang for the buck” as they do not even narrow the claims or issues. Hamilton-Wenham Regional School District, BSEA #1707353, 23 MSER 179 (Figueroa 2017). Districts have become increasingly aggressive in challenging physician statements for home/hospital tutoring, including filing hearing requests arising out of those challenges. The hearing officer in Weston Public Schools and Griffin, BSEA #1804286, 23 MSER 207 (Reichbach 2017) recognized the validity of such a challenge by refusing to dismiss the district’s hearing request. The hearing officer in Taunton Public Schools and Adam, BSEA #1708888, 23 MSER 194 (Reichbach 2017) provided a detailed analysis of various statute of limitations issues, including what statute of limitations applies to amended hearing requests. The maxim that FAPE disputes often rise or fall on the reasonableness of the school district is manifest in theNatick and Framingham Public Schools, BSEA #1707648, 23 MSER 199 (Berman 2017) where it was abundantly clear that the districts had done everything possible to provide FAPE and opportunities for parent involvement in the Team process.
The BSEA Has No Authority to Order the Awarding of Credits or to Bar Certain School Staff from Attending Team Meetings
The student in Hampden-Wilbraham Regional School District, BSEA #1710699, 23 MSER 172 (Putney-Yaceshyn 2017) was an eighteen-year-old who was receiving services pursuant to an IEP accepted on October 21, 2016 and partially rejected on May 23, 2017. The parents sought two orders from the BSEA: (1) awarding credits for the first term of the 2016-2017 school year; and (2) barring the school principal from attending meetings about the student or having any decision-making authority regarding the awarding of grades for the student.
During the fall 2016 term, the student was absent 25 days, tardy 12 times, and dismissed early once. The parents attributed the attendance issues to the student’s disabilities, which included an anxiety disorder with panic symptoms. At a January 2017 team meeting the principal stated that the school’s attendance policies would not allow for the awarding of the credits, but if the student’s attendance and grades at his new placement, Mt. Tom Academy, were good, he would revisit the issue of the first semester credits.
At a May 18, 2017 team meeting, it was noted that the student had done well across the board at Mt. Tom Academy, including achieving 85% attendance. However, the principal stated he would continue to hold the grades in abeyance. On May 23, 2017 the family partially rejected the IEP for the failure, amongst other things, to accommodate the student’s disability around attendance.
Noting the oft-cited principle that the BSEA is a court of limited jurisdiction, the hearing officer found no authority in Massachusetts law (MGL c. 71B, §2A; 603 CMR 28.00 et seq.) or federal law (20 U.S.C. §1415(B)(6); 34 CFR §§300.500-517) regarding the BSEA’s jurisdiction specifically providing for the awarding of credits or application of attendance policies to students with special needs. If the awarding of credits was part of the student’s IEP, then that issue would properly be before the BSEA. Here, the accepted IEP made no mention of any of the student’s disabilities impacting his attendance. In Student v. Attleboro Public Schools, BSEA #06-0034, 11 MSER 177 (Crane 2005), the district was obligated to address and accommodate the student’s attendance because the IEP did acknowledge the nexus between attendance and the student’s special needs. Here, the parents were prevented from challenging the failure to accommodate the student’s attendance prior to the May 23, 2017 partial rejection. Seeking to bar certain school staff from being involved in team meetings or decisions about a student is a not infrequent desire of parents, but that was clearly beyond the authority of the BSEA as well.
While the decision is predictable, it is unfortunate that the hearing officer did not take a more expansive view of her jurisdiction. The fact that a student’s disability may impact attendance is not always anticipated at the beginning of an IEP term and poor attendance or school refusal is often undeniably related to the student’s disability. The application of facially neutral attendance/credit policies may in fact be discriminatory when applied to certain students with special needs. This decision, including the component allowing the claim to proceed after the partial rejection of May 23, 2017, serves as a caution not only to include attendance accommodations in the original IEP when possible, but also to later reject that IEP or seek an amendment to it when the issue comes to the fore.
The Intersection of Language Access and FAPE
The 18-year-old student in Worcester Public Schools and Fernando, BSEA #1800970, 23 MSER 183 (Reichbach 2017) enrolled in the Worcester Public Schools on March 29, 2017 with his IEP from Puerto Rico. His and his guardian’s primary language was Spanish. The gravamen of his hearing request was that Worcester failed to provide properly translated documents, failed to act properly in accordance with his exercise of shared decision-making and failed to conduct proper and timely evaluations of him. He sought supports integrating his language needs into his IEP, including appropriate Spanish-English instruction. He brought claims under the Americans with Disabilities Act (ADA) and the Equal Educational Opportunity Act of 1974 (EEOA).
Worcester moved to dismiss, claiming that the BSEA had no jurisdiction to decide violations of the ADA or EEOA and that the core of the student’s objections to the sufficiency of Worcester’s program related to the provision of English Language Learner (ELL) supports and services, which was also beyond the jurisdiction of the BSEA.
The hearing officer noted that pursuant to the Supreme Court’s decision in Fry v. Napoleon Community Schools, 137 S.Ct. 743 (2017), exhaustion is not required for non-IDEA based claims when the core of student’s claim is something other than the denial of the IDEA’s core guarantee of FAPE. The hearing officer found that the student’s claims about the denial of FAPE and ELL supports involved complex issues and that the determination of whether any ELL services were required for Fernando to receive FAPE would necessitate careful consideration of expert testimony at hearing. Therefore, the hearing officer denied Worcester’s motion to dismiss those claims. However, the hearing officer dismissed the Title VI and EEOA claims, which were not IDEA-based and did not allege or seek relief for the denial of FAPE, and so were not properly before the BSEA.
For students with both disabilities and language access issues, FAPE can only be provided with appropriate ELL services that are combined with appropriate special education supports. In recognizing this, the BSEA will be able to fashion the appropriate remedies.
There is great work being done on this compelling issue. Dianne Phillips, Benjamin Stern and Brett Carroll of Holland & Knight, LLP, in conjunction with Phil Kassel of Mental Health Legal Advisors, Bob Hernandez and Tere Ramos have brought an impact suit against DESE, the Holyoke Public School system and related parties for failing to provide adequate translation and interpretation of educational records and communications. Padres Latinos de las Escuelas de Springfield y Holyoke v. DESE, et al, United States District Court Massachusetts (Springfield) Docket #11556-MGM. The parties have been negotiating about a resolution and hopefully this suit will help bring about systemic improvement for services and participation for ELL students and their families in Holyoke and other school districts.
Parents’ Case for Reimbursement of Unapproved Program Tuition Dismissed on Summary Judgment
The factual background and complex procedural history of the dispute between the parties in Waltham Public Schools and Dorian, BSEA #1702306, 23 MSER 187 (Reichbach 2017) are detailed in several prior rulings. What is instructive about this ruling on Waltham’s motion for summary judgment, apart from the doggedness of the hearing officer in giving every opportunity to the parents to establish their case, is that because the parents had rejected numerous offers of extended evaluations and different private placements, the parents’ burden of proof had morphed into establishing that the student’s needs were such that no DESE approved special education school could meet them. Alas, the parents’ efforts to scale this high bar never got off the ground because of their repeated failures to comply with the pre-hearing orders and submit documentation supporting their unilateral placement reimbursement claim. As further grounds for the dismissal of the parents’ claims, the hearing officer found that the documents submitted by Waltham established that the district, through its offers of placements at a wide variety of residential and day placements, both private and public, satisfied its obligation to provide FAPE.
BSEA Refuses to Assert Jurisdiction Over Dispute About Compliance with Settlement Agreement
Consistent with her prior rulings, the hearing officer in Wellesley Public Schools, BSEA #1800903, 23 MSER 191 (Byrne 2017) dismissed a parents’ claim for breach of a settlement agreement as beyond the jurisdiction of the BSEA. The complicated settlement agreement provided that the parents were to provide unspecified special education services in exchange for funding for those services by the district. The agreement broke down over Wellesley’s purported failure to provide a timely IEP and funding for certain services. While the parents alleged this resulted in a denial of FAPE, the relief they sought was monetary. Because the hearing officer saw this as a request for money and not services, she dismissed the action leaving the parent to pursue their breach of contract claim in state court. We have consistently maintained and continue to maintain this is too narrow an interpretation of the BSEA’s mandate. In any situation where the district’s failures have resulted in a possible denial of FAPE, whether that is from the failure to provide funding or services, the BSEA should be an available forum for those parents’ claims.
What Statute of Limitations Applies to Discrimination and Amended Claims
On April 19, 2017, the parents filed a request for an expedited hearing in Taunton Public Schools and Adam, BSEA #1708888, 23 MSER 194 (Reichbach 2017), emanating from the purported failure of Taunton to convene a timely manifestation determination meeting. The hearing was held in May 2017 and ended with a decision in the parents’ favor. See Taunton Public Schools and Adam, BSEA #1708888, 23 MSER 67 (Reichbach 2017). To flesh out the remaining issues, the parties agreed that the parents would file an amended hearing request, which they did on September 26, 2017. The hearing officer then delineated the issues for the subsequent hearing as the alleged violations of Section 504 and IDEA arising from disciplining the student for such purported acts as changing his classes without approval, improperly involving entities such as law enforcement and DCF, and failing to provide accommodations. Taunton moved to dismiss new allegations that arose beyond the statute of limitations, allegations that arose during periods of accepted IEPs, as well as the entire amended hearing request on the grounds of vagueness.
As an initial matter, the hearing officer, applying the requisite motion to dismiss analysis of taking the parents’ allegations as true, held that the parents’ clams that Taunton discriminated against the student by removing him from Junior ROTC, improperly pursued criminal charges against the student, referred the family to DCF purportedly to pressure them into accepting an extended evaluation of the student, and delivered a no-trespass order to the student when he showed up for a manifestation determination meeting, “plausibly suggest that the Parent is entitled to relief¼” and therefore the hearing request could not be dismissed in its entirety for failing to state a proper claim.
Turning to the motion to dismiss on timeliness grounds, three considerations were in play. First, an amended claim relates back to the original filing date if the amendment “merely clarifies issues raised in the initial hearing request.” Otherwise, the date of the amendment is the controlling date. See BSEA Hearing Rule I(G). Second, claims relating to fully accepted IEPs can only be made if the parents challenged those IEPs during their implementation period or for the failure to fully implement them. Third, the statute of limitations time period for bringing a claim may be tolled if the district’s fraud or deception prevented the parents from being aware of the claim.
Applying those principles to the case, the hearing officer held that whether or not the parents challenged the IEPs during their relevant time period and whether the IEPs were fully implemented were questions of fact that could not be determined at the motion to dismiss stage.
Claims that Taunton discriminated against the student by removing him from Junior ROTC and a computer class were not delineated in the original hearing request, and therefore were controlled by the September 26, 2017 amended hearing date. Since these claims were IDEA-based because they related to the provision of special education services and classes, the two-year statute of limitations for IDEA-based claims applied.
The remaining discrimination allegations—that Taunton improperly involved the police, DCF and juvenile court—were not FAPE claims because they were akin to personal injury matters. As such, and under the analysis of Fry v. Napoleon Community Schools, 137 S.Ct. 743 (2017), these need not be brought to the BSEA. Therefore, a three-year statute of limitations time period applied, not the two-year IDEA one. The hearing officer dismissed Taunton’s argument regarding MGL c. 151B, which requires that certain claims for discrimination must be filed with the Massachusetts Commission Against Discrimination (MCAD) within 300 days of the discriminatory act. Chapter 151B addresses discrimination in housing and employment, not education, and apart from the exhaustion requirement, does not infringe on a party’s ability to bring a case to court within three years. As such, the three-year statute of limitations applied to these discrimination claims.
Parents’ Claim of FAPE Denial Fails in Light of the Extensive Efforts by the School Districts
The hearing officer in Natick and Framingham Public Schools, BSEA #1707648, 23 MSER 199 (Berman 2017) was able to succinctly analyze the complicated “back story” concerning purported disputes over residency and collateral litigation and show their irrelevance to the issues involved. The student was a ninth grader who resided with her father in Natick and her mother in Framingham, and DESE had determined that Framingham and Natick shared fiscal and programmatic responsibility for the student’s private placement pursuant to 603 CMR 28.10(2)(a)(2). The student had strong cognitive abilities with disabilities including a significant anxiety disorder and selective mutism which significantly affected the student’s attendance and ability to manage the stresses of the school environment. The student had been without school services since March 2017 and was enrolled in a private general education high school.
The hearing officer turned aside a whole raft of procedural violations alleged by the parents relating to Natick’s denials of eligibility, failure to provide timely evaluations or services, and undermining the parents’ participation in the team process. The record was replete with evidence of the district providing timely evaluations; offers of placement and interim tutoring; and myriad opportunities for the parents to be involved in the student’s evaluations, IEP development, and placement. For example, during team meetings in December 2014 and February 2015, the Team found student ineligible for special education or a §504 plan. The parents never contested this. In response to a subsequent parent referral, Natick offered in December 2015 an extended evaluation at the Gifford School. While the student did not enter Gifford until March 2016, that delay was due to the parents’ keeping the student at home under an inadequate physician’s statement. Regarding parent participation, the uncontradicted record established that the district made herculean efforts to involve the parents by seeking meeting dates when the parents might be available, inviting the parents to participate by phone when they failed to show up for Team meetings, and conducting follow-up meetings.
The student attended Gifford pursuant to an accepted IEP until she stopped attending there in March 2017. Parents claimed the Gifford placement failed to provide FAPE failed for two reasons. First, it is axiomatic that the parents cannot mount a successful FAPE challenge to an expired IEP that was not rejected during its term. There was no evidence of any subsequent formal or even “constructive” rejection of that IEP. Second, the record firmly established that the Gifford IEP was, in using the language of the recent and much-anticipated decision by the Supreme Court in Endrew F. v. Douglas County, 137 S.Ct. 988 (2017) ,”appropriately ambitious.” The overwhelming testimony of Gifford and Natick staff showed that the student made meaningful progress there, including speaking with others, forming relationships, becoming highly involved in the school, and expanding her academic performance. In addition, the district and Gifford made “great efforts” to address any concerns that arose from time to time relating to the student’s time at Gifford.
BSEA Refuses to Dismiss District’s Case Challenging the Parents’ Physician Statement for Home-Hospital Tutoring
The district challenged the parents’ physician statement for home-hospital tutoring and sought substituted consent to perform three-year evaluations and place the student at the district’s language-based program in Weston Public Schools and Griffin, BSEA #1804286, 23 MSER 207 (Reichbach 2017). The parents moved for dismissal or summary judgment. The seven-year-old second grader was pulled from Weston Public Schools before the end of the 2016-2017 school year, attended the Carroll School for summer 2017 and then enrolled at the Friends Academy in Dartmouth, Massachusetts in the fall 2017. On October 27, 2017 Weston received a physician statement requesting home services, stating that the student was diagnosed with ADHD and dyslexia, had experienced multiple failed school placements and has been observed to manifest unpredictable escalation of self-regulation difficulties in school settings. Parents contended that the student was without a placement and undergoing a psychological evaluation at home and his mental health issues qualified as a medical condition for purposes of home tutoring. Parents refused to allow Carroll School personnel, Friends Academy personnel, or the student’s various health care providers to speak with Weston about the student and refused to consent to evaluations by Weston. The parents also rejected Weston’s offer to have the student attend a different Weston elementary school for full or partial days until the parties could agree on a placement.
The parents’ motion to dismiss the hearing request in its entirety was denied. Weston was essentially seeking a declaration that it had met its obligations to provide FAPE, and that formed the basis for an appropriate request for relief. The hearing officer found that there were sufficient material facts in dispute that a hearing was necessary. Therefore, summary judgment was denied.
Multiple Preliminary Motions Fail to Narrow the Issues
Hamilton-Wenham Regional School District, BSEA #1707353, 23 MSER 179 (Figueroa 2017) demonstrates that preliminary motions do not necessarily resolve any of the issues raised in the original hearing request. In settling an earlier dispute, the parties agreed in a January 2017 mediation that the parents would apply to TECCA (a virtual school), the district would reimburse the parents for counseling, testing, and speech therapy, and if the parents identified a private placement for the student, the parents would get the BSEA to schedule a mediation “to develop a plan to facilitate the placement.” Id. at 181. The parents decided against TECCA and sought continued tutoring. The parents filed for hearing alleging the student had been bullied and the district had compiled reports with mis-diagnoses that damaged the student’s reputation, prevented the student from attending any educational program, and further isolated the student. The parents sought necessary accommodations to allow for FAPE, placement at an appropriate school, and reimbursement for various therapies and educational services. What ensued was a host of motions that ultimately failed to winnow down the issues for the hearing. These included a “partial” motion to dismiss by the district, followed by the district’s motion to file a counterclaim to parents’ counterclaim, a hearing request embodying the same issues in their motion to file counterclaim, and lastly, a motion to consolidate the two matters. The hearing officer found that both parties raised similar issues and that the parents had a plausible cause of action. Therefore, the motion to dismiss was denied while the motion to consolidate was allowed, providing that all the matters would heard together at a full hearing.
 The parents were represented by the Commentator.