Commentary on Massachusetts Special Education Decisions: 2nd Quarter, 2018, by Melanie R. Jarboe:

November 06, 2018


During the second quarter of 2018, the BSEA issued seven decisions and five rulings that cover a wide variety of issues, reiterating well-established law in some instances and providing new information to parents and practitioners in other instances. Topics included general education issues such as class placement and credits (Hopkinton and Grafton), districts requesting more restrictive placements than parents felt was appropriate (Freetown-Lakeville and Sabis), private schools terminating or attempting to terminate a student (Framingham and Boston), dismissals due to statute of limitations or jurisdictional issues (Hingham, Old Rochester, Norwood), expert observation of district programming (Hampden-Wilbraham), compensatory services (Westborough), and the appropriateness of an in-district IEP that provided for a less restrictive IEP than the student’s stay-put IEP (Nashoba).

Parents secured favorable outcomes in two instances (Boston and Framingham). Mixed relief resulted in two cases (Hopkinton and Hampden-Wilbraham). The districts prevailed in the remaining eight instances. Rulings do not usually state whether the parents were represented by attorneys, but of the seven hearing decisions, parents had attorneys in two cases (Boston and Freetown-Lakeville) and prevailed in one of those cases (Boston). In the five cases where parents had no representation, parents prevailed in only one instance (Framingham).

No Violation Of Civil Rights In Exclusion From AP Course

In Hopkinton Public Schools, BSEA #1805239, 24 MSER 36, Hearing Officer Rosa Figueroa considered the case of a Hopkinton tenth grader who had been denied admission into Advanced Placement (“AP”) Biology and was subsequently diagnosed with ADHD. Although the district found the student eligible for a Section 504 plan, Parents filed for hearing alleging that Hopkinton had denied the student a FAPE, had failed to fulfill its child find obligations, and had discriminated against the student. The Parents sought public funding for the student to attend a private, general education school of his choosing for junior and senior years. Hopkinton filed a motion to dismiss on the basis that many of the Parents’ claims were outside the two-year statute of limitations, that student’s exclusion from AP Biology was a general education issue outside the purview of the BSEA, and that the district had no reason to suspect the student had a disability prior to the diagnosis of ADHD, since he had high grades and good performance on MCAS testing.

Without deciding whether the Parents or the district had interpreted the law correctly, Hearing Officer Figueroa did not dismiss the claim, finding that “Parents have articulated sufficient reasons why they may plausibly have a cause of action and may therefore proceed with their claims regarding child find and denial of FAPE.” However, Hearing Officer Figueroa warned the Parents that the standard of comparison on a Section 504 claim was the universe of students in the same age and grade and that the Parents had the burden of persuasion, leading the casual reader to infer that the Parents’ case was in some jeopardy. Even if Hopkinton did violate the student’s rights as alleged, there is no guarantee—and would in fact be highly unusual—that a hearing officer would order the district to pay for a general education private school.

No Relief For Parents After Removing Student From Day Placement

Hearing Officer Catherine Putney-Yaceshyn considered the appropriate placement for a ten-year-old student in Westborough Public Schools, BSEA #1708273, 24 MSER 46. The student presented with diagnoses of autism, receptive language disorder, verbal apraxia, epilepsy, ataxia, and ADHD. He was minimally verbal, exhibited maladaptive behaviors such as aggression and flopping, and demonstrated little to no safety awareness. Beginning in July 2016, the student attended “Blackacre,” a private day placement, pursuant to Westborough’s IEP (the school successfully argued for a pseudonym to be used in the publicly available decision). Starting in November 2016, the student was late to school almost half the time, which staff noted may be impacting the student’s progress. The student began coming home with marks on his legs, arms, and hands in December 2016 and January 2017. Blackacre’s school nurse assessed student on a number of occasions as well, given concerns about self-injurious behaviors. Due to ongoing and excessive aggression toward staff, climbing on objects, and throwing materials, student was also spending time in Blackacre’s “calm room,” a 6×6 space with a windowed door that sprung open unless someone held it from the outside. Subsequently, the Parent came to school and stated that she would remain all day to observe. When told that she was only allowed to stay for a few hours that day but needed to schedule a longer observation in advance, she reportedly became belligerent and left the school with student. The Parents stated that Blackacre had terminated the student’s placement (which Blackacre disputed) and, regardless, requested a different placement from Westborough.

On February 15, 2017, the Parents informed the district that the student would not be returning to Blackacre given safety concerns. Westborough believed that Blackacre continued to be appropriate for the student but sent out packets to nineteen other schools in an effort to find a school for the student. In the interim, Westborough continued to fund Blackacre, including student’s 1:1 assistant, and provided additional supports through Pride Star and Autism Behavioral Services. The student began attending the LABBB Collaborative in the fall of 2017, but LABBB terminated him due to his significant aggressive behaviors in mid-October 2017.

The Parents requested that the Hearing Officer order compensatory services for the period from February 15, 2017 and the start of the 2017-2018 school year, but the Hearing Officer declined to do so. Hearing Officer Putney-Yaceshyn discussed the Parents’ concerns one by one and concluded that the Parents had not proven that placement at Blackacre denied the student a FAPE. Since Westborough had made an appropriate placement available to the student throughout, the Hearing Order denied the Parents’ request for compensatory services.

In this case, the Parents’ efforts were unsuccessful for a few reasons. First, the Parents had virtually no expert support for their claim that the program at Blackacre was deficient. As we have commented on many occasions, it is virtually impossible for a parent to win a case without robust expert support. The second factor that clearly impacted the case was the Parent’s conduct throughout the hearing process. The Hearing Officer took “administrative notice” that the mother’s conduct throughout the hearing was “belligerent, argumentative, and defiant,” to the extent that the Hearing Officer had to stop the hearing on more than one occasion and found her testimony unpersuasive when it conflicted with another witness’s version of events. Though the subject matter at BSEA hearings is intensely personal and often quite emotional, “belligerent, argumentative, and defiant” behavior on the part of a party, attorney, or witness does not impress hearing officers. It may be that Blackacre violated the student’s rights to a FAPE, that it was an unsafe placement, and that the Parents were correct in their allegations, but due to inadequate case preparation and the mother’s conduct during the Hearing, the parents did not convince the Hearing Officer of the merits of their position.

Stay-Put Rights Granted Despite Significant Extra Cost Required

The Framingham Public Schools, The Guild for Human Services, and the Department of Developmental Services were all involved in BSEA #1808824, 24 MSER 68, which concerned the question of whether a nearly 22-year-old student, who had been diagnosed with autism, an intellectual disability, and intermittent explosive disorder, was entitled to “stay put” at the Guild after being terminated from the placement. On March 24, 2018, the student assaulted a peer and the peer sustained a severe concussion. Five days later, the Guild terminated the student on an emergency basis. The Guild initially agreed to delay the student’s termination so that a new placement could be located and tried to keep the student and the peer separated during this time. However, the two students were in the same four-person residence and it was difficult to keep them separated. On April 2, 2018, the student threatened to kill the peer and his family member, and staff called 9-1-1. The peer was quite frightened and refused to return to the residence, and the Guild had to rent a hotel room for the peer and provide staffing at the hotel in addition to increased staffing in the campus residence to ensure that the student’s behavior did not impact any other residents. During a meeting on April 4, 2018, the Guild confirmed it would be terminating the student. The parties devised a plan to transition the student to a DDS placement where he could remain after he turned 22 years old a few months later, given concerns with too many transitions. Framingham sent out a number of referral packets and DDS made a number of referrals as well, but there was no placement available for the student. The Guild, meanwhile, determined that it was unfeasible to provide the services (additional security, housing student at a hotel, providing additional trained staff).

The Hearing Officer noted that the cases regarding stay put rights generally fell into two categories. In some cases, the district can fulfill stay put by providing comparable services to those a student had been receiving but in a different location. In the absence of any other available placements, the Hearing Officer turned to cases where a district could only fulfill stay put requirements by providing services at a specific school. Over the objection of the Guild, which argued that it was not subject to stay put and that it had followed its own termination policy, the Hearing Officer determined that the student did have a right to stay put at the Guild. She noted that the Guild “cannot be faulted for any of their actions,” but that because there was no other available placement, the student had a right to remain at the Guild until his 22nd birthday. The Hearing Officer ordered the parties to convene a Team to determine what safety measures were necessary and stated that Framingham was responsible for arranging and funding any additional personnel or services deemed necessary. From a public policy standpoint, the Hearing Officer clearly reached the right decision here. As she noted, “if the IDEA’s stay put provisions are to have any meaning, the BSEA cannot issue a decision finding that Student does not have any placement in which to remain during the pendency of this matter.” It is our hope that the parties not only found a way for the student to remain safely and productively at the Guild but also worked with DDS to provide the student with a residential placement that met his complex needs immediately after his 22nd birthday.

Conclusion Of Manifestation Determination Set Aside

Boston Public Schools and Ivy Street School, BSEA #1808494, 24 MSER 59, involved another private special education school attempting to terminate another complex student after a behavioral incident. The 21-year-old student had been diagnosed with ADHD, Mood Disorder NOS, Oppositional Defiant Disorder, Intellectual Impairment, a communication disability, and a nonverbal learning disability. He experienced interpersonal problems, negative mood, aggressiveness, assaultiveness, auditory hallucinations, and paranoia, and had a history of requiring physical restraints. Boston’s most recent three-year re-evaluation noted concerns with the student’s “ability to inhibit impulsive responses, adjust to changes in routine or task demands, modulate emotions, initiate problem solving or activity, sustain working memory, plan and organize problem solving approaches, organize his environment and materials and monitor his own behavior.” The student attended the Ivy Street School starting in September 2015 pursuant to a Boston IEP that identified the student’s various issues with self-regulation and that the parent accepted.

On April 11, 2016, the student was playing basketball and felt threatened by the other students, who he felt had been picking on him for months. He subsequently brandished a knife and threatened to use it if the other students continued to harass him. The police took the student to the hospital, where the student expressed remorse and stated that he did not intend to harm anyone. The following day, Ivy informed the parent that the student was suspended on an emergency basis and that Ivy was seeking to terminate the student. Following a suspension hearing on April 14, 2016, the student was suspended for ten days for bringing a knife to school and the manifestation hearing (“MDR”) to determine if his behavior was substantially related to or directly caused by his disability was scheduled for April 27, 2016. Ivy agreed that the student’s disabilities contributed to his difficulty managing his emotions, but asserted that the disabilities did not contribute to the student’s decision to bring a knife to school. Only one person present at the MDR had provided direct services to the student but she did not state her opinion regarding whether the incident had been a manifestation of the student’s disability. The MDR ended with a finding that the incident had not been a manifestation of the student’s disability or of a failure to implement the student’s IEP. Ivy subsequently notified the Parent that the student would be terminated, effective as of the date of the MDR. The Parent subsequently accepted a placement at Seaport Academy, a therapeutic day placement.

The Parent filed for an expedited hearing to reverse the determination of the MDR after the student’s former clinician expressed his belief that the student’s behavior had been a manifestation of his disability for many of the reasons outlined in Boston’s psychological evaluation. Boston argued that the Parent’s claim was barred by the statute of limitations, but Hearing Officer Rosa Figueroa disagreed—the Parent had filed on April 6, 2018 challenging the results of the manifestation determination that had occurred on April 27, 2016 as the result of an incident that had occurred on April 11, 2016. Therefore, the Parent’s claim was timely. Ivy Street argued that it should not be required to participate in the hearing process. Again, the Hearing Officer disagreed and found that complete relief could not be granted in Ivy’s absence and that the BSEA did have jurisdiction over Ivy Street in this instance.

Hearing Officer Figueroa found numerous problems with the MDR and therefore overturned the determination that the incident had not been a manifestation of the student’s disability. Hearing Officer Figueroa took issue with the fact that Ivy Street had already decided to terminate the student before the MDR, that relevant members of the Team were not present at the MDR, that those who were present disregarded critical information and lacked first-hand knowledge of the student’s disabilities, that relevant information in the student’s file was not considered, that the student was not removed to an interim alternative educational setting but was instead terminated from Ivy Street on an emergency basis, and that the only person present who had provided direct services to the student had not provided input at the MDR. Hearing Officer Figueroa ordered Boston and Ivy to amend the Student’s record to reflect the fact that the incident had been a result of his disabilities. This reversal of the finding that the conduct was not a manifestation of the student’s disabilities was all that the parents were requesting. They were apparently satisfied with the new placement at Seaport so they were not asking for reinstatement at Ivy Street.

Stay Put IEP Is Overly Restrictive; District’s IEP Is Adequate

Hearing Officer Lindsay Byrne held that the district’s IEP in Nashoba Regional School District and Zul, BSEA #1804287, 24 MSER 101, provided the student with a FAPE in the least restrictive environment and that the student’s stay-put IEP, which had been drafted by the Boston Public Schools before the student moved to Nashoba, was overly restrictive. The student had resided in Boston and attended the Carroll School, a private school for students with dyslexia, for the 2015-2016 and 2016-2017 school years. In IEP meetings during the 2016-2017 school year, the Parents asked the Boston Team to draft an IEP that resembled the student’s services at the Carroll School, which the Team did. The IEP provided for a substantially separate placement with 1:1 reading services. The Parents accepted the IEP and moved to Nashoba, where the staff implemented the IEP while conducting benchmark testing on the student. Benchmark testing, according to Nashoba, indicated that the student’s skills were largely at grade level and that his remaining deficits could be remediated with much less restrictive special education services than his IEP called for. Recent neuropsychological and educational testing confirmed that the student had made “striking progress” in academic achievement since attending the Carroll School. Meanwhile, Nashoba reported that the student disliked being pulled out for special education services.

Nashoba convened the Team in September 2017 and drafted an IEP for the student that included increased time in the general education setting. Nashoba also requested consent to conduct the student’s three-year re-evaluation, which the Parent declined. The Parents rejected the IEP and the Team reconvened in October 2017 to address the Parents’ rejections. Nashoba proposed an IEP that included some additional pullouts, believing that the Parents’ concerns could be satisfied with additional services (though still in a less restrictive program that set forth in Boston’s IEP). The Parents rejected the second IEP as well. The Parents eventually consented to the three-year re-evaluation in March 2018, though it does not appear that the testing occurred prior to the hearing. They also consented to the IEP in part. Nashoba filed for a hearing and requested a finding that the district’s proposed IEP was appropriate.

During the hearing, the Parents alleged that Nashoba failed to fully implement Boston’s stay-put IEP. Despite a loss of thirty minutes per day of special education services during Nashoba’s implementation of Boston’s IEP, the Hearing Officer held that Nashoba had provided “sufficiently comparable” special education service delivery, setting, and providers, with positive results for the student, such that compensatory services were not appropriate. The Parents alleged procedural violations regarding the benchmark testing that Nashoba conducted but the Hearing Officer dismissed those claims. Finally, the Parents alleged that Nashoba had filed its hearing request in retaliation for the Parents’ filing a complaint at the federal Office of Civil Rights (OCR), but the Hearing Officer noted that the district had filed for hearing prior to the date the Parents filed at OCR.

This is another case where pro se Parents had no expert witnesses to support their claims and where the Hearing Officer alluded to poor behavior from the Parents during the hearing process, Parents did not succeed in convincing the Hearing Officer that Nashoba had committed procedural violations or denied the student a FAPE. The Hearing Officer held that the district’s IEP, which provided for a less restrictive program and placement than the stay put IEP, was both procedurally adequate and reasonably calculated to provide the student with a FAPE in the least restrictive environment.

District Not Required To Give Credit For Unaccredited Language Course

The issue in Grafton Public Schools, BSEA # 1806824, 24 MSER 96, was whether Grafton was legally required to accept Parents’ choice of outside language instruction in satisfaction of the school’s diploma requirements. The student, who had Autism and was eligible for special education, wanted to take German to satisfy the district’s language requirement. Grafton High School did not offer German language classes, however, and so the Parents arranged for a retired college professor to provide the student with German lessons during his freshman year. Grafton cited district policy against accepting unaccredited coursework for credit and offered three accredited German courses (two online and one in-person class), all of which the Parents refused.

The Parents filed for hearing alleging that Grafton was failing to make a reasonable accommodation for the student’s disability. Hearing Officer Lindsay Byrne held in favor of the district after considering both the FAPE standard under IDEA and the “reasonable accommodation” standard under Section 504. The parties agreed that the student had been making effective progress during the 2017-2018 school year, that the Parents had accepted the district’s proposed IEP, and that there were no recommendations on the record for a change in service type, delivery, or setting. In fact, the Parents’ proposed course of action would have allowed the student to opt out of a non-preferred activity even though his IEP targeted the development of age-appropriate coping skills in the face of situations or demands that he did not like. The Hearing Officer found that Grafton had neutrally applied its graduation requirements and its policy against accepting transfer credits from an unaccredited entity, and that the application of those policies had not disadvantaged students with disabilities. Citing Grafton’s offer of three alternative courses of instruction in the student’s preferred language, any of which would have satisfied district requirements, and at no cost to the family, the Hearing Officer concluded that Grafton had acted in a “more than reasonable” and “generous” fashion. Indeed, the decision does reflect painstaking steps taken by a district that wanted to satisfy this student’s desire to take German and to receive course credit. The Parents would have done well to accept one of the three alternative courses for credit, with ongoing assistance from the neighbor at their own election and expense.

District’s Proposed Placement Is LRE; Parent Loses Bid For Less Restrictive Placement

In Freetown-Lakeville Regional School District and Gregory, BSEA #1806094, 24 MSER 81, the district filed for hearing regarding the placement of a 16-year-old student with an intellectual disability, potential psychosis, a history of trauma, and troubling behaviors in the school setting. Gregory (a pseudonym chosen by the Hearing Officer) attended a partial inclusion program at the district’s public high school with small classes and significant supports across the day. After expressing suicidal ideation in the spring of 2016, Gregory’s academic engagement and behaviors deteriorated in the fall of 2017. His thoughts and speech were disorganized, he had increased difficulties with peers, and was evincing delusions. He posted suicidal content on social media and the district confirmed that there were guns in the home.

The district arranged for a psychological evaluation at READS Collaborative and the two evaluators expressed their belief that Gregory would be unable to access the curriculum in a mainstream setting due to intellectual development disorder (mild), unspecified neurodevelopmental disorder, mood-related psychoses, depression, and possible emergence of schizophrenia. The psychologists concluded that Gregory needed placement in a therapeutic environment. Before the Team could convene to review the READS evaluations, Gregory got into a fight and was suspended for five days. A few days later, a group of district personnel and the two READS evaluators met with Gregory’s father to discuss the evaluations. This was not a TEAM meeting, given the absence of any teachers or anyone who worked directly with Gregory. Nevertheless, the group recommended an extended evaluation at the Chamberlain International School, where Gregory would be a day student and have access to psychiatric services and medication referral. Gregory and his father agreed to the extended evaluation, which ran between October 30, 2017 and January 18, 2018. Gregory was not allowed to return to the high school between the end of his suspension and the start of his evaluative placement.

At Chamberlain, Gregory did better with his academics and was receptive to therapeutic support provided in the classroom, though he was not receptive to therapy. He refused to take any medication. His disorganized thinking continued, he expressed paranoid thoughts to staff, and he left a voicemail threatening district personnel. During the extended evaluation, Gregory’s father expressed his wish for Gregory to return to the district’s public high school as a general education student. Gregory’s private therapist supported this, and stated that Gregory would be more regulated if he could return to public school. However, Chamberlain recommended, and the district agreed, that Gregory needed to attend a therapeutic day school setting. The father rejected this recommendation immediately. The district “rushed” to develop an IEP based on input from Chamberlain and discussions with district staff (but without a Team meeting) and offered to provide tutoring to Gregory until the parties could agree on an appropriate placement. The district neglected to communicate to Gregory’s father that Gregory had the right to return to the public high school, which was his stay put placement, pending the resolution of the dispute. Instead, the district marked Gregory absent despite the fact that he was not permitted on school property.

The district filed an expedited hearing request on January 22, 2018 along with a Request for Interim Relief from Stay Put, which amounted to a request that the Hearing Officer allow the district to continue excluding Gregory in spite of his stay-put rights. Hearing Officer Amy Reichbach ordered the district to allow Gregory to return to public school, which he did for seven days. During those seven days, he was scattered, anxious, depressed, paranoid, dysregulated, and very concerned about pleasing others. Subsequently, the Parent and district agreed that Gregory would receive tutoring instead of attending school. He ultimately required 2:1 tutoring sessions given dysregulation. Meanwhile, Gregory’s private therapist felt that he was making progress and that he was focused on a positive future.

The hearing regarding Gregory’s placement lasted for six days and included testimony from district personnel, Chamberlain personnel, two evaluators from READS Collaborative, the student’s Parent, the student’s private therapist, and the student himself. The Hearing Officer found that the district had met its burden of proving that its proposed placement in a therapeutic day school was the least restrictive environment in which Gregory could receive a FAPE. Everyone who testified at the hearing except Gregory, his father, and his therapist, agreed that Gregory required placement in a therapeutic day program that included psychopharmacological services, the option to step down slowly through less restrictive programs, and on-site counseling. Gregory’s own testimony provided ample evidence of disorganized thought, grandiosity, and paranoia, and the Hearing Officer found that “[e]vidence at hearing¼did not support Gregory and his father’s understanding of Gregory’s academic abilities.” Although Gregory’s therapist had met with him consistently for almost three years, she had never seen him in an academic setting, and she acknowledged that she was unqualified to evaluate academic programming. The eight other individuals who had also worked directly with Gregory contradicted the therapist’s testimony that Gregory could handle general education programming.

After finding that Gregory had not been making effective progress in the inclusion setting and that he had done well at Chamberlain, the Hearing Officer concluded that a therapeutic day program was indeed the least restrictive environment for Gregory. However, the Hearing Officer did not find that the district’s IEP provided Gregory a FAPE. The IEP had not been drafted as a result of a Team meeting, and it referred to grade-level texts despite noting that Gregory’s reading level was at a mid-elementary level. The proposed IEP contained imprecise goals and benchmarks and paid scant attention to transition goals and services. The Hearing Officer ordered the district to locate a placement and to convene the IEP Team within 14 days to draft a new IEP for Gregory.

Finally, Hearing Officer Reichbach cautioned the district about its multiple due process violations throughout the 2017-2018 school year, including the district’s failure to honor Gregory’s stay-put rights or to communicate with the Parent regarding the same. She acknowledged administrators’ concerns about Gregory’s escalating behaviors (particularly in light of tragedies occurring in school nationwide) but suggested—without making explicit findings, since Gregory’s Parent had not raised related claims—that the district’s actions may have infringed on Gregory’s due process rights. In addition to the actions noted by Hearing Officer Reichbach, we would add the district’s failure to convene the IEP Team at any point during the 2017-2018 school year despite clear evidence that this student was struggling to access the curriculum, to make effective progress, and to maintain safety in school and at home. Convening the Team should be the first response to a student in crisis and it is unfortunate that, despite reaching what seems to be a reasonable conclusion regarding Gregory’s placement, the district did so without regard for the Team process.

District And Charter School Win Residential Placement For Student Over Parental Objections

Hearing Officer Lindsay Byrne found in favor of a charter school and school district in Sabis International Charter School, Springfield Public Schools, and Yaroslav, BSEA #1803303, 24 MSER 72. The eleventh-grade student’s educational career had been marked by dysregulation and sexually provocative behaviors as early as first grade, resulting in a number of psychological evaluations and a series of increasingly restrictive educational placements until the parent withdrew him from his therapeutic day placement and sent him to Sabis (a charter school) starting in 9th grade (2014-2015 school year). The student’s behavior continued to escalate in an inclusion placement at the charter school, including sexually touching other students against their wishes. Many of the incidents were captured on the school’s security cameras or observed by adults, but the student persistently denied the incidents or stated that the other student involved had been the aggressor. After hiring two outside evaluators in 2017 and determining at an August 2017 Team meeting that the student required residential services, Sabis recessed the meeting to arrange for the participation of the Springfield Public Schools, as is required by 603 CMR 28.10(6). The Springfield Public Schools representative attended a subsequent meeting and stated that Springfield rarely endorsed residential programs for students with disabilities, but that she agreed that Sabis’s draft IEP calling for a residential placement was appropriate for the student. The Parent, who believed that the student was being unfairly targeted and bullied, had instructed the student not to serve any of the disciplinary consequences imposed on him. The Parent asserted that the student did not have the problems that the school personnel and evaluator described, and the parent rejected the IEP and subsequently rejected an extended evaluation as well. Springfield sent out a number of referral packets to day and residential placements, but the parent did not follow through on any possible openings.

Sabis and Springfield argued at hearing that the proposed IEP and placement in a residential setting were necessary for the student to receive a FAPE. The Parent claimed that Sabis had failed to allow her to observe the program and thereby denied the student a FAPE. Hearing Officer Byrne concluded that Sabis had proven “by far more than a preponderance of the evidence” that the IEP calling for residential placement was appropriate for the student and further found that the Parent had not met her burden of proof regarding allegations about the observation.

Although the Hearing Officer took the time to commend Sabis for ongoing attempts to serve the student despite escalating behaviors, parent refusal to permit various interventions, and other intervening circumstances, the reader is struck by the longstanding nature (approximately 12 years) of such high-intensity sexualized behaviors; the parade of school-side evaluators who often did not have access to the student’s whole file and who repeatedly sounded the alarm regarding recidivism but who did not include the word “residential” in their recommendations; and the Springfield Public Schools representative’s testimony that she “rarely endorsed residential placements for students with disabilities.” Understanding that the Parent stymied many good faith interventions along the way, why did it take so long for the educational professionals involved with this student to recommend a residential placement? Why did no one respond to the numerous evaluations over many years that raised serious concerns about the entrenched, sexualized behaviors that this student was exhibiting? The very troubled student at the center of this case will hopefully receive the treatment he requires to make effective progress but the systemic resistance to the idea of residential placements and the deeply concerning consequences of that position are also on full display in this case.

District Wins Motion To Dismiss Case Regarding Alleged Violations During Time When Student Was Ineligible For Special Education

The Parents in Hingham Public Schools, BSEA #1804284, 24 MSER 32, were seeking reimbursement for their son’s placement at a non-special education boarding school. The Parents had withdrawn their son from special education services in August 2014 due to the stigma the student felt for being on an IEP. The student was disciplined (as a general education student) for providing a copy of a final exam to peers at the end of the 2014-2015 school year. The Parents subsequently withdrew the student from Hingham and placed him at Brewster Academy in the fall of 2015. Over one year later, in November 2016, the Parents requested a special education evaluation from Hingham. The district completed its evaluations and found the student not eligible in March 2017.

The Parents filed for hearing in November 2017, requesting reimbursement for Brewster Academy tuition. Despite the Parents’ arguments that Hingham violated their son’s rights pursuant to Section 504, even while he was not on an IEP, Hearing Officer Putney-Yaceshyn ruled that (1) Hingham had acted appropriately when it treated the student as a general education student after his August 2014 withdrawal from special education, citing guidance from the U.S. Department of Education, Office of Civil Rights that when parents reject services developed pursuant to IDEA, parents essentially reject what would be offered under Section 504 and (2) the Parents’ claims that Hingham’s disciplinary action in the spring of 2015 was the result of inadequate programming for a number of previous years and had traumatized the student were barred by the statute of limitations. Oddly, the Parents had not raised any claims about the district’s actions between the request for an evaluation in November 2016 and the finding of ineligibility in March 2017, so the Hearing Officer made no findings regarding Hingham’s actions during that time. Accordingly, the Hearing Officer granted Hingham’s motion to dismiss with respect to all claims raised by Parents’ hearing request.

Although this outcome allows the Parents to file for another hearing requesting that the student be found eligible for special education, the parents would carry the burden of proof. Winning the eligibility argument would require robust expert support regarding the student’s inability to make effective progress in the general education curriculum without specialized instruction, an argument that would be complicated by the fact of the student’s placement in a general education setting. Even if the parents did succeed in proving that the student required an IEP, expert support would be necessary for the fact that the public school’s proposed program was inadequate and also for the fact that the desired placement—a general education school—is meeting special education needs.

District’s Motion To Dismiss Granted On Jurisdictional, IEP Acceptance, And Statute Of Limitations Grounds; Hearing To Proceed On FAPE Question

The Parents in Old Rochester Regional School District and Alice, BSEA #1806205, 24 MSER 35 filed for hearing alleging that Old Rochester had denied their daughter a FAPE and requesting reimbursement for a unilateral placement at Friends Academy, a private general education school. In addition to their special education claims, the Parents alleged a number of constitutional and common law violations including bullying, retaliation, sexual and physical assaults, failure to follow the student handbook, abuse, neglect, and negligence. The district filed a partial motion to dismiss, arguing that the BSEA’s limited jurisdiction prevented Hearing Officer Lindsey Byrne from addressing the Parents’ non-special-education claims. Hearing Officer Byrne agreed and dismissed the bulk of the Parents’ claims, leaving the only remaining question for hearing whether the most recently proposed IEP was appropriate and, if not, whether the Parents were entitled to reimbursement for Friends Academy.

As we have noted in the past, Frazier v. Fairhaven School Committee, 276 F.3d 52 (1st Cir. 2002), requires parents to exhaust administrative remedies if the underlying issues may give rise to relief under IDEA. Frazier asserts that fact determinations may be more appropriately made in the specialized administrative forum (e.g., the BSEA) that has jurisdiction over, and the experience and expertise to decide, IDEA-related issues. Since the Parents’ claims in this case could arguably have flowed from the student’s status as a special education student, their claims may have been dismissed for failure to exhaust administrative remedies if they had first filed suit in state or federal court before proceeding to the BSEA.

Although the Hearing Officer did not reach the merits of the Parents’ FAPE claims, it is relevant to note that the Parents had not rejected any of Old Rochester’s IEPs before providing notice that they would be placing their daughter at Friends Academy. To districts and hearing officers, a series of accepted IEPs is generally evidence that the Parents found nothing wrong with the student’s special education services. Again, parents bear the burden of proving that the district’s IEP was inadequate and that their chosen school placement met the student’s needs, and robust expert support is critical in that aim.

Hearing Officer Sends Parties To Court For Interpretation Of Settlement Agreement

In Norwood Public Schools and Calvin, BSEA #1805218, 24 MSER 42, Hearing Officer Lindsay Byrne found that a dispute between the Parents and district could not be resolved without interpreting a 2015 mediation agreement between the parties. The 2015 mediation agreement provided that the student would attend the Landmark School as a residential student for his high school years and in the event of his “dismissal or termination” by the Landmark School, Norwood would reconvene the Team. Otherwise, the agreement provided that Norwood’s discharge of the funding and placement obligations in the Agreement would “satisfy all of the District’s special education obligations to the student during the term of [the] agreement.” During the student’s second year at the Landmark School, Landmark placed him “on leave” for non-academic reasons. The student completed the year via Skype. After a subsequent mediation, Norwood began the referral process for the student’s placement in an approved, private special education school. The day after the mediation, the Parent withdrew the student from the Landmark School and informed the district of her intent to place the student at the Eagle Hill School, an unapproved private school, and to seek reimbursement from the district. Thereafter, Norwood convened the Team and proposed an IEP and placement at Norwood High School. The Parent rejected the IEP and filed for hearing.

The Parent argued that the dispute was one regarding FAPE and that the operative questions were whether Norwood’s IEP was appropriate for the student and, if not, whether Eagle Hill met his needs. The district argued that the dispute was over the meaning of the agreement itself, which was outside the jurisdiction of the BSEA. Citing a provision of IDEA that states that a mediation agreement “is enforceable in any State court of competent jurisdiction or in a district court of the United States,” Hearing Officer Byrne held that, given the mediation agreement, the BSEA did not have jurisdiction to determine if the BSEA could hold a hearing on the appropriateness of the district’s proposed IEP. The Hearing Officer found that the parties had to go to court to get a ruling to determine if the BSEA could conduct a hearing on the merits of the case. The Hearing Officer stated, “A reviewing court may find that the plain language of the Parties’ 2015 Mediation Agreement relieves Norwood of further IDEA obligation to Calvin. On the other hand, it may find that, under the Mediation Agreement, Calvin retains procedural and/or substantive IDEA rights until he earns a diploma or turns 22.” The Hearing Officer directed the parties to seek review in court before filing for hearing at the BSEA and dismissed the Parent’s hearing request without prejudice.

It is not clear that other hearing officers would have reached the same conclusion in this case. Nonetheless, the facts provide a cautionary tale to attorneys when drafting settlement agreements and particularly when considering the parties’ respective rights and responsibilities if a student is separated from the agreed-upon placement for any reason. Without consideration of all possibilities, students, parents, and schools are left without clear guidance and the possibility of a dispute.

District Violates Observation Law; Hearing Officer Denies Parents’ Request For Sanctions

Hampden-Wilbraham Regional School District, BSEA #1803791, 24 MSER 45, concerned the district’s refusal to permit the Parents’ chosen expert, a speech-language pathologist, from observing the district’s proposed program in September 2017. The Parents filed for hearing in October 2017, seeking reimbursement for the student’s placement at Curtis Blake, a DESE-approved private day school, as well as “an order precluding the district from presenting evidence concerning its own proposed program as a sanction for its interference with parental rights to observation.” The Parents later proposed as alternative relief that the district be required to fund the student’s placement at Curtis Blake from September 2017 until the issuance of a decision in the matter.

In her ruling, Hearing Officer Sara Berman considered the request for relief related to the observation issue ahead of a full hearing on the merits. The Parents argued that the observation law contained in GL c. 71B, §3, as well as its implementing regulation at 603 CMR 28.07(1)(a)(1), unequivocally granted them the right to observation of the district’s proposed program by an individual of their own choosing, provided that the observer respected student confidentiality and the integrity of the program. The district argued that the speech-language pathologist had improperly critiqued teacher performance in a previous observation report and that such critique was a “teacher evaluation” that was “contrary to district policy.” This previous observation report apparently included criticism of staff instructional approaches, which the district argued violated rules about teacher evaluations contained in statutes, regulation, DESE guidance, and collective bargaining agreements. The Hearing Officer did not agree that a program observation somehow amounted to a “teacher evaluation” just because it included a critique of instructional methods. Hearing Officer Berman concluded that “the purpose of the relevant provisions regarding teacher evaluations is not to prohibit parents and/or their experts from commenting on a teacher’s methodologies or instructional techniques in a post-observation report, especially when such comments are directly tied to the ‘fit’ between a child’s identified needs and the teaching practices described.” Given that the observer’s previous report had not been problematic, the Hearing Officer ruled that the district had acted improperly by refusing to permit the observation in September 2017.

However, the Hearing Officer disagreed with the Parents that either of their requests for relief was appropriate. The Parents argued that because the speech-language-pathologist was on leave past the scheduled hearing in the case, they would be unable to have the district’s program observed in a timely fashion and this would force them to incur additional tuition expenses in the interim. Although the Hearing Officer seemed sympathetic to this plight, she did not disallow the district from presenting evidence regarding its proposed program, stating that this would deprive her of information necessary to make the FAPE determination. She also refused to order the school to fund the student’s placement pending a full hearing on the merits and instead set hearing dates for March 2018, which would allow the Parents to get the district’s program properly observed after the speech-language pathologist returned from leave.

In this case, we see a district trying to weaken the protections of the observation law, which was enacted to ensure that parents are able to obtain full and adequate observations of a school’s programs. As we see time and time again, it is virtually impossible for parents to carry the burden of proof in a BSEA case without competent, well-credentialed experts who have a solid basis for their opinions. A parent-side expert testifying at a hearing that the district’s program is inadequate without ever having seen that program will rarely convince a hearing officer of that fact. Here, Parents could have had a different observer opine on the district’s program but wanted to capitalize on the expertise of the speech-language pathologist. Although the speech-language pathologist’s leave did extend the timeline, the Parents won the ability to have the observation done by the expert of their choice and the district is on notice that the observation law applies even when they take issue with an expert’s previous criticism.

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