INTRODUCTION

The third quarter of 2018 was a busy one for the BSEA, which issued seven decisions and seven rulings during that time. The BSEA also released two decisions from prior years (Millbury Public Schools, from 2017, and Hampden-Wilbraham Regional School District, from 2015). This Commentary discusses all of the decisions and all but one of the rulings.

One of the decisions (Bay Path Regional Vocational Technical High School) considers the application of the school’s attendance policy to a student whose chronic migraines frequently caused him to miss school. Two decisions (Worcester Public Schools and Westborough Public Schools) revolve around a student’s emergency termination from an out-of-district program. Two more (Andover Public Schools and Hampden-Wilbraham Regional School District) grant reimbursement for the parents’ unilateral placement of a dyslexic student, but leave open the possibility that the district’s program for the coming school year could be made appropriate. One decision (Taunton Public Schools) provides a primer as to what districts ought not to do with regard to manifestation determination reviews. Another (Silver Lake Regional School District) provides guidance as to when residential placement will and will not be ordered. The final two consider the appropriateness of a district’s proposed program where pro se parents did not participate in the hearing (Millbury Public Schools) and whether a district can be required to provide transportation temporarily to and from a respite facility (Sharon Public Schools).

The rulings concern a variety of issues. Two (Newton Public Schools and Marshfield Public Schools) arose on motions for summary judgment; parents prevailed in one and the district in the other. One (Wellesley Public Schools) involves the intersection of custody and standing. Another (Taunton Public Schools) involves issues of joinder and dismissal with regard to the district of residence, where the student attended public school in a different district under the school choice program. Lastly, on the discovery front, hearing officers reaffirmed parents’ right to discover peers’ IEPs with proper safeguards as a matter of course (Beverly Public Schools) and explained the hearing officer’s discretionary control over discovery deadlines, including the 10-day deadline for objections under BSEA Rule VI.B (Gardner Public Schools, Athol-Royalston Public Schools).

Vocational school’s rigid attendance policy creates headaches for student with chronic migraines, violates Section 504

School districts will sometimes adhere slavishly to policies which, although they may appear facially neutral, are in fact discriminatory as applied. Such was the case in Bay Path Regional Vocational Technical High School, BSEA #1805746, 24 MSER 177 (Figueroa, 8/30/18). The policy at issue concerned absenteeism and credit restoration. It provided that a student who failed to meet the school’s attendance requirements[1]  would not receive course credit unless the student engaged in credit restoration, which could only be done by attending the district’s “Saturday School.” The student was also required to meet attendance requirements and pass all courses during the following school year before credit could be restored. The policy applied both to excused and to unexcused absences. The hearing officer found that the policy, as applied to a student with chronic migraine headaches, denied the student equal access to the school’s general education program, thus violating Section 504 of the Rehabilitation Act of 1973.

The parties agreed that the 16-year-old student suffered from chronic migraines and that, when experiencing a migraine, he was unable to perform any academic work. His headaches could last for hours or days. During ninth grade (2016-2017), he was placed on a Section 504 plan, but the attendance policy was not modified. He was frequently absent due to his migraines. In the spring of that year, the school informed the parents that he was at risk of non-promotion because his absences exceeded the allowable number. His neurologist completed the Physician’s Statement for Temporary Home or Hospital Education and wrote a note informing the school that all of his absences were migraine-related. The absences were therefore treated as excused, but were nevertheless counted toward the district’s maximum absence limit. The student did not make up the work he missed nor could he participate in tutoring when it was offered, due to the severity of his symptoms. He failed several courses. At the end of the school year, the district refused to promote him, informing the parents that even if he had passed all his classes he would be retained in ninth grade due to excessive absences. The school failed to offer any credit restoration options, failed to refer him for a special needs evaluation, and suggested that perhaps he and his parents should look for a different educational setting.

The parents filed a complaint with DESE’s Problem Resolution System (“PRS”), which found no violation. The student repeated ninth grade in 2017-2018, retaking at least four courses that he had passed during the previous year.

At the start of the 2017-2018 school year, the student’s physician submitted another Statement for Home and Hospital Education. The 504 Team reconvened, revising the 504 plan to add an accommodation for “Tutoring after 14 missed school days,” inter alia, but refusing the parents’ request for tutoring to replace every migraine-related absence from school. The student was subsequently placed on an IEP, which also failed to modify the school’s attendance policy and which contained the same provision about tutoring. Meanwhile, the student’s migraines (which had worsened) caused his absences to mount. Pursuant to the credit restoration portion of its attendance policy, the district insisted that attending “Saturday School” was the only way for the student to regain credit lost due to his migraine-related absences. The district refused to grant credit for completion of classwork on his own, for after-school help that the student sought out, or for tutoring (other than that delivered during Saturday School). His parents began to fear that he would exceed the maximum allowable absences for 2017-2018 and for tenth grade (2018-2019), leaving him with no credit whatsoever after having spent three years at the school.

The parents filed a hearing request, asserting that the student was entitled to reasonable modification of the district’s attendance policy because the policy, as applied to the student, discriminated against him on the basis of his disability. The school then modified its position, allowing credit first for tutoring done during the week and then for after-school tutoring. This, plus his attendance at Saturday School, brought the student’s absences below the district’s limit, allowing the district to argue that the matter was moot. The hearing officer rejected this contention, reasoning that the dispute fell within the well-established principle that cases capable of repetition yet evading review are not moot. As the hearing officer pointed out, “it is very likely that [the student] will continue to have migraines and that he will be absent, making it reasonably foreseeable that he will once again exceed the maximum limit for absences” and causing him to risk receiving no credits and being forced to repeat tenth grade. 24 MSER at 190.

Moving on to analyze the merits, the hearing officer noted that the parents were “not seeking that the academic standards be lowered or that the integrity of the vocational program be undercut.” 24 MSER at 191. As to 2016-2017, the hearing officer noted that the student had indeed failed several courses, because he lost motivation upon learning that his absences would prevent him from being promoted. She stated, however, that his numerous absences and inability to complete his work should have triggered the school’s child find obligation under IDEA, which would have resulted in an earlier evaluation and earlier provision of an IEP.

Turning to the 2017-2018 school year, the hearing officer agreed with the parents that requiring the student to attend Saturday School was a discriminatory practice that punished him for his disability. Saturday School was described in disciplinary terms in the Student Handbook as well as in the attendance policy, and students understood it that way. The hearing officer found that “the main reason for requiring Student’s attendance at Saturday School was to make up ‘lost time’, not for Student’s instructional benefit.” 24 MSER at 192. Citing Millis Public Schools v. M. P., 478 Mass. 767 (2018), the hearing officer emphasized the importance of distinguishing voluntary school absence from involuntary. As she stated, in the instant case the parties agreed that the student was a motivated individual who did not want to miss school. Thus, the hearing officer concluded, “it appears that measures designed for one category of absence were applied without individual consideration to an entirely different and protected category of absences,” those due to the student’s migraines. 24 MSER at 193. Because there was no educational reason for the student to attend Saturday School, requiring him to attend simply to make up time for protected absences was punitive and unlawful.

The hearing officer next considered the legality of the school’s policy that prevented the student from receiving any credit for one school year until he had completed the next grade without exceeding the absence limit. This, too, she found to be discriminatory as applied to the student. As the hearing officer observed, the policy made no exception for medically-excused absences, and the student’s migraines, which caused his absences, were not within his control. Thus, it was possible that the student could “spend multiple years at Bay Path, pass all of his courses (academic and shop), and receive zero credits.” 24 MSER at 193. The parents did not seek to exempt the student from work completion and graduation requirements, nor did the school present any evidence that modifying its policy would cause undue hardship, create financial or administrative burden, or fundamentally alter its program. Thus, the hearing officer concluded, the school had discriminated against the student and violated Section 504 by applying its attendance policy to his medically-excused absences. The hearing officer ordered the school to provide reasonable accommodations to the student by modifying its attendance policy in four ways:

(a) exempting his medically-excused, migraine-related absences from the attendance policy and not counting them toward the absence limit;

(b) eliminating the requirement to attend Saturday School to make up time for medically-excused absences and allowing the student credit restoration through tutoring at any time;

(c) amending the student’s IEP and/or 504 plan to provide for tutoring as necessary due to medically-excused absences and to allow the student to make up tests, quizzes, and assignments missed due to such absences, without penalty; and

(d) exempting the student from the attendance policy’s requirement that he complete a second year successfully before receiving credit for the preceding year.

We think that the hearing officer reached the right result. The school’s attendance policy, as applied to the student, clearly discriminated against him on the basis of disability, with draconian consequences. It is regrettable that the student was required to waste an entire year by repeating ninth grade due to the school’s refusal to provide him with reasonable accommodations, and reprehensible that the school continued to insist on its policy even though it could not even articulate a valid reason (hardship, burden, or fundamental alteration) for doing so. It is also unfortunate that PRS, when presented with the issue, apparently failed to examine it with care anywhere near that which the hearing officer employed. We credit the student and his parents for their perseverance under conditions that might well have caused other families to throw up their hands and transfer out of vocational school.

We do question one of the hearing officer’s subsidiary rulings. The parents argued that the district’s refusal to provide tutoring until the student had missed 14 days of school, despite his physician’s submission of a valid home and hospital form, violated 603 CMR 28.03(3)(c), which requires tutoring to begin immediately upon a physician’s certification that the student is likely to miss 14 days during the school year. They argued that the district, by requiring the student to wait until 14 school days had passed, violated Section 504 and deprived the student of FAPE. The hearing officer rejected that argument. Although she agreed that requiring the student to wait 14 days violated 603 CMR 28.03(3)(c), she stated that the parents had accepted 504 plans “containing an accommodation that was contrary to the regulation,” thereby waiving any claims based on violation of the regulation. 24 MSER 194.

In our view, this conclusion is misguided. The hearing officer appears to have assumed that the parents knew the regulation and knowingly waived its requirements. We think it unlikely that that was the case. Even if the parents had received a copy of the Parent’s Notice of Procedural Safeguards, that notice says nothing about tutoring. It is unfair to deem the parents knowledgeable about all regulations that might possibly apply. Where, as here, the district is the party whose job it is to be familiar with the regulations, the scales should tip in favor of the parents unless there is evidence of a knowing waiver (not apparent from the decision here). The burden should not fall on parents, many of whom are trusting and/or unsophisticated, to parse every provision of a 504 plan or IEP to ensure the district’s compliance with state and federal law.

Emergency termination: a lesson in “what not to do” for special education schools

In Worcester Public Schools, BSEA #1808823, 24 MSER 162 (Reichbach, 8/30/18), the parents challenged the emergency termination of their son, Steve, from the Robert Goddard Academy (“RGA”), a therapeutic day school operated by the Central Massachusetts Collaborative (“CMC”). The parents lodged claims pro se against CMC and Worcester, primarily arguing that CMC lacked the cause needed to support Steve’s emergency termination. The hearing officer easily agreed, reasoning that CMC could not, and did not, establish that Steve was a “clear and present” threat to himself or others. She found that the emergency termination was therefore wrongful.

Steve was a 16-year-old student with an emotional disability. RGA knew that he had a history of making aggressive and threatening comments, which had caused concern in his previous school settings. RGA also knew that Steve was obsessed with weaponry and the military and that his thoughts were not always grounded in reality. Indeed, Steve’s operative IEP expressly stated that he “does not understand the significance of the statements that he makes, then becomes angry/upset at the consequences they bring.” 24 MSER at 166. Further, his Behavior Intervention Plan (“BIP”), developed by RGA, targeted three behaviors: “inappropriate or threatening language or conversation; bringing weapons to school; and reality testing.” 24 MSER at 167. From the date of Steve’s enrollment in January through the school’s February vacation, RGA had neither concerns about Steve nor problems implementing his IEP.

Over the school’s February vacation, however, the Worcester Police Department visited Steve’s home regarding an anonymous tip received by the FBI. This tip, made very close in time to the school shooting in Parkland, Florida, concerned an online threat, allegedly made by Steve, in which he communicated an intent “to conspire with people from the Middle East ¼ bring a knife and ¼ attack people at school.” 24 MSER at 167. Steve adamantly denied threatening school safety, and the police notified RGA that they did not believe that Steve posed an imminent safety concern or had a plan to engage in school violence.

When Steve returned to RGA following the February vacation, RGA met with Steve to discuss the tip and related events. Steve made some conflicting statements, stating both that the tip was “ridiculous” and then that the FBI was “catching up with him.” 24 MSER at 168. Steve ultimately told RGA staff that he would not have threatened to attack with a knife, since he would have instead “do[ne] it with a gun.” Id. Steve then made similar comments to CMC’s clinician. At that point, CMC’s clinician contacted Steve’s parents and his outside therapist. Steve’s outside therapist relayed to CMC’s clinician that he had no concerns for Steve’s safety, since Steve sometimes said things he did not mean, and did not follow through. At another meeting two days later, Steve again denied that he threatened school safety but alluded to the fact that had he done so, he would have threatened to shoot (not stab) someone. CMC then terminated Steve’s enrollment on an emergency basis, citing its concerns for Steve’s “overall safety” and its belief that it could not meet Steve’s needs. CMC prohibited Steve’s return. Thereafter, CMC informed Worcester of its final determination, at which point Worcester attempted to locate and secure another placement for Steve.

To assess the appropriateness of CMC’s emergency termination, the hearing officer applied 603 CMR 18.05, which imposes both procedural and substantive requirements on a special education school—such as CMC—when it seeks to terminate the enrollment of publicly-funded student—such as Steve. Pursuant to 603 CMR 18.05, a school may effect an emergency termination when the student “presents a clear and present threat to the health and safety of him/herself or others.” 24 MSER at 174. Even upon such a showing, however, the school shall not terminate the student until “the enrolling public school district is informed and assumes responsibility for the student.” Id.

In addition to the mandates of 603 CMR 18.05, hearing officers also consider a variety of factors when reviewing an emergency termination, including evidence as to whether: the school could no longer provide for the student; the school attempted modifications to make the school safe for the student; the student’s behaviors are within the purview of the school’s expertise; and/or the student’s behavior is consistent with, or different from, descriptions available to the school prior to the student’s acceptance. These factors all weighed against CMC and in favor of the parents.

The hearing officer found, based on overwhelming evidence, that Steve’s behaviors were consistent with those of which CMC had been aware.[2]  At hearing, an RGA staff member testified that Steve’s statements about using a gun, rather than a knife, and his general tone throughout his initial meeting with RGA could have been manifestations of his disability. The hearing officer also emphasized that Steve’s statements about violence and guns would not be unexpected, and, in fact, were among the very behaviors that RGA sought to address with him. The hearing officer also found that RGA could have, but did not, modify Steve’s IEP, BIP, and/or safety plan, to include, for example, a daily (or twice daily) search to ensure that Steve did not bring a weapon to school.

Thus, the hearing officer held that CMC’s emergency termination did not satisfy the substantive standards of 603 CMR 18.05. The hearing officer further held that CMC’s failures to consider any modifications to Steve’s behavior plan, its staffing, and/or school environment, together with its failure to timely inform Worcester of its concerns, did not satisfy the regulation’s procedural standards either. Irrespective of CMC’s failings, Worcester had complied with its obligations to convene an emergency IEP team meeting and explore potential placements for Steve going forward. Despite best efforts, Worcester still had not located and secured another placement for Steve by the date of the hearing, and thus Steve was attending an interim placement, which all parties agreed was inappropriate for him. The hearing officer ordered CMC to rescind the emergency termination, permit Steve to return to RGA immediately, and convene Steve’s IEP team to determine, what, if any, compensatory services were owed to him.

It is entirely conceivable that CMC’s decision to terminate Steve was a knee-jerk reaction to the ever-increasing threats of mass violence against school communities by students across the country. However, as this case demonstrates, a special education school, prior to effecting an emergency termination of a publicly-funded student, must consider any threats in light of the student’s circumstances and attempt to modify the student’s program in an effort to enable the student to remain safely in the program. This case serves as a cautionary tale for special education schools that a hasty decision, driven by fear and untethered to fact, has far-reaching consequences for the student and the school at the center of an allegation. A school must consider all other options before rushing to terminate a publicly-funded student, even on an emergency basis. An emergency triggers a school’s compliance with clear substantive and procedural requirements; it does not excuse the school from complying with them.

Emergency termination: a lesson in “what not to do” for parents

Similar to the decision in Worcester (discussed above), the decision in Westborough, BSEA #1809434, 24 MSER 196 (Oliver, 8/30/18), also grapples with the aftermath of a publicly-funded student’s emergency termination from a special education school. In Westborough, however, the parent’s claims centered upon the actions of the school district (not the special education school). And, unlike the decision in Worcester, the hearing officer in Westborough cast full blame on the pro se parent, reasoning that her actions—not Westborough’s—deprived the student of a FAPE following his emergency termination from the LABBB Collaborative (“LABBB”).

According to the evidence introduced at the hearing, the student in this case, Ric, who was just 10 years old, exhibited many aggressive behaviors and little to no safety awareness. Not even two months after Westborough had placed Ric at LABBB, LABBB terminated Ric’s enrollment on an emergency basis, due to his dangerous behaviors. Almost immediately, Westborough arranged for Ric to receive some interim services while it attempted to secure additional services and, ultimately, another placement for Ric. To its credit, Westborough sent out approximately 30 referrals and re-referrals during this process.

Over five months after Ric’s termination from LABBB, the May Center (“May”) accepted him, conditioned on the parent’s completion of necessary paperwork and her provision of various consents relating to, for example, service delivery and restraints. The parent accepted the placement at May, but she rejected certain aspects of the program, based, at least in part, on legitimate concerns involving Ric’s seizures, asthma, and communication disorder. In the past, the parent had also alleged that Ric was abused by staff at LABBB, which arguably motivated her reservations moving forward. Despite the parent’s request for a meeting, May revoked Ric’s acceptance because the parent did not fully and timely comply with its requirements. Again, Westborough endeavored to secure another placement for Ric. Due to Ric’s lapses in programming and services, the parent alleged that Westborough denied Ric a FAPE and owed him compensatory services.

Westborough did not dispute that it owed Ric at least some compensatory services, corresponding to those periods of time during which it could not locate service providers to deliver all of the services to which Ric was entitled under his IEP. The district disputed that it denied Ric a FAPE, however. With little rigorous analysis, the hearing officer agreed.

Considering the laundry list of efforts by Westborough in placing Ric, together with the complexity of Ric’s profile which rendered his placement extremely difficult, the hearing officer found no evidence that the district denied Ric a FAPE or interfered with his placement. Instead, the hearing officer pointed the finger at the parent, citing her uncooperative (and even obstructionist) relationship with the district. But for the parent’s actions, the hearing officer concluded, Ric would have been enrolled at May. Thus, the hearing officer did not fault the district for the lapse in Ric’s programming. While the hearing officer could have ended his decision there, he did not. He also blamed the parent for unilaterally removing Ric from his placement prior to LABBB, which was the subject of a previous BSEA decision, stating that but for the parent’s actions there, Ric would still have been enrolled at that previous school (or at May). Such reasoning is dangerously speculative and exceeds the bounds of the issues raised in the current case. The hearing officer also failed to consider the nature of the May “behavioral/restraint” policies to which the parent objected. It is thus difficult to determine from the decision whether she might have had valid reasons for her objections.

While the team process is, at its core, cooperative, it strikes us that the hearing officer did not appear to weigh, at least expressly in his decision, the parent’s concerns regarding the confluence of Ric’s developmental challenges, medical diagnoses, and vulnerability to abuse. It is unlikely that such an analysis would have changed the outcome of the decision, since Westborough appeared to have readily fulfilled its obligations to Ric; however, it might have helped illuminate some of the reasons (whether legitimate or not) why the parent was not willing to be a passive (and, therefore, a “cooperative”) participant in the Team process. As we have found time and again in working with families, parents are often considered part of the Team only when their objectives squarely align with the district’s. Parents must be mindful of how their actions, at every turn, will be construed by Teams, districts, special education schools, and hearing officers alike.

Parents’ inability to observe to-be-created program for dyslexic student not determinative; reimbursement ordered due to program’s inappropriate structure

The situation in Andover Public Schools, BSEA #1805127, 24 MSER 109 (Berman, 7/9/18), is a familiar one: a student who is floundering in an inclusion program is diagnosed with a language-based learning disability/dyslexia (and also, in this case, ADHD). An independent evaluator recommends that the student received specialized, language-based instruction in small classes with similar peers across all subjects throughout the school day. The district responds with a half-measure, proposing a partial inclusion program whereby the student would attend ELA and math in the pullout setting but would be mainstreamed with an aide for the other core academic subjects (science and social studies). The parents place the child in private school (here, Landmark) and seek reimbursement. Here, the scenario was complicated by the fact that, as often happens, the district’s proposed program would start in the fall of the school year after the IEP was developed, meaning that there was no program in existence for the parents to observe when making their decision about placement.

In this case, the parents argued that they should prevail both because of their inability to observe the proposed program and because of its inappropriateness. The hearing officer rejected the first argument but accepted the second.

It seems (and often is) unfair to parents to expect them to make a decision about the appropriateness of a program that is not yet in existence and thus cannot be observed. Indeed, the Legislature has recognized the key importance of observations in educational decisionmaking by giving parents and their designees the right to observe any program proposed for the parents’ child. MGL c. 71B, § 3. As the DESE has acknowledged, observations “provide access to programs so that parents can make informed decisions about their child’s special education programs and services.” Technical Assistance Advisory SPED 2009-2: “Observation of Education Programs by Parents and Their Designees for Evaluation Purposes”(1/8/09) (available at http://www.doe.mass.edu/sped/advisories/09_2.html). At times, BSEA decisions have awarded parents reimbursement for a unilateral placement based at least in part on the lack of information available to the parents at the time when they had to decide about placement. E.g., Natick Pub. Sch., BSEA # 09-7499, 16 MSER 47, 58 (Berman, 2010) (“Further, Mother lacked crucial advance information about [the proposed in-district program’s] appropriateness to meet Student’s documented needs”).

As Andover demonstrates, however, parents and their advocates cannot assume that lack of ability to observe a proposed program will automatically produce a favorable result. The result will depend on the circumstances. The same hearing officer who found advance information about a nonexistent program to be insufficient in Natick concluded that enough detail had been provided in Andover. In the latter case, the district proposed in June 2017 that the student move in September to a new second-grade partial inclusion program for students with language-based learning disabilities. The parents requested but did not receive important information about the program, including “a program description, information about staff training and consultants, curriculum and methodology, and the proposed peer group.” 24 MSER at 115. The district had not yet identified a definite second-grade cohort. The best that the district could do was to offer the parents the opportunity to observe fourth- and fifth-grade versions of the proposed program, which were already in operation.

That turned out to be enough. The hearing officer concluded that the district’s proposed placement “was, in fact, available in a timely manner” and that the parents had received sufficient information about it in June 2017. In so holding, she focused on the facts that Andover’s second-grade offering represented an addition to an established program that had been in existence at the upper elementary level for a number of years; that the patents had been able to observe the upper-grade program, including at least some of the proposed second-grade teachers; that the parents had access to staff members who would have been able to provide more information; and that the IEP “stated clearly how the placement would address Student’s needs.” 24 MSER at 121. She distinguished Natick by pointing out that there the district “was unable to provide the parent with any concrete information” as to how its proposed transition program would meet the student’s needs, had failed to put key elements of the program into place, and had failed to individualize the program for the student. Id.

We think that parents should not be required to make important educational decisions based on conjecture and speculation. Here, the parents were offered an observation of classrooms of students three and four years older than their son (he was a rising second-grader; the parents observed rising fifth- and sixth-graders). Presumably these students were functioning at a more advanced academic level than the parents’ child, making it difficult for the parents to picture their son in the place of these children. Moreover, these were not the children with whom their son would have been placed. Even assuming arguendo that the fourth- and fifth-graders each constituted a coherent peer group, that hardly guarantees that next year’s second-graders will be. Reference to the IEP’s statements as to “how the placement would address Student’s needs” seems tautological. The entire purpose of the observation law is to allow parents and their experts to test the IEP’s representations against the reality on the ground. Here, there was no such reality to observe. The parents were told, in effect, to squint and imagine it.

Despite this disappointing ruling on the issue of their ability to observe, the Andover parents prevailed on the merits as to the 2017-2018 school year. The hearing officer found the parents’ independent experts credible when they testified that the proposed partial inclusion program, which required the student to receive science and social studies instruction in mainstream classrooms, was inappropriate for him. As the hearing officer stated, the overall weight of the evidence “persuades me that the sheer number of students in each [regular education] classroom (approximately 20), rotation of these 20 students through multiple centers within the classroom during many of the lessons, and pace and complexity of instruction make this portion of the program inappropriate for Student.” 24 MSER at 121 (footnote omitted). The hearing officer discounted the contrary testimony of the district’s consultant because the consultant “did not address how Student, with his slow rate of work, low level of reading and writing ability, and distractibility, could keep up with the demands of the inclusion classroom.” Id. at 122.

Importantly, the hearing officer went on to observe that even if the student could have managed somehow to keep up, “the time spent in the inclusion setting in second and third grade would be time lost from remediation during a critical window for acquiring literacy.” 24 MSER at 122. This is a point that is sometimes overlooked in discussions of the least restrictive environment, and we are glad to see the hearing officer acknowledge it here. In determining the LRE, it is necessary to examine not only the composition of the group (the number of typical peers) but also whether the setting is one that will allow the student to make effective progress. Here, because the mainstream setting would deprive the student of the opportunity for the remediation he required, it was not appropriate.

Because the hearing officer found the district’s proposed 2017-2018 second-grade partial inclusion program inappropriate, she ordered reimbursement retroactively for that year. She found that the proposed 2018-2019 program for third grade was similarly inappropriate, as “[t]he problematic inclusion portion for science and social studies would remain,” leaving the student’s services “not sufficiently integrated across content areas” and “not cohesive enough to meet Student’s needs.” 24 MSER at 122. The hearing officer also found Landmark to be appropriate for the student during the time periods at issue.

This does not mean that the student necessarily received a Landmark placement for 2018-2019, however. The hearing officer observed that “Andover’s program could be appropriate for Student in the near future if (1) Andover expands the self-contained portion of the language-based classroom to encompass all of the other core subjects, or (2) Student makes sufficient progress with basic reading and writing skills to benefit from the inclusion portion of the program without losing necessary remediation time.” 24 MSER at 122. She therefore ordered the district to issue an IEP or amendment that either provided an in-district substantially-separate language-based program across all academic content areas or provided a placement at Landmark for the remainder of the IEP period at issue.

Parents who place unilaterally and hope to achieve both retroactive reimbursement and prospective relief in the form of continued private school placement need to be aware of the possibility of orders such as this one. Just because retroactive reimbursement may be awarded (since there is no way for a district to go back and cure the flaws that its program may have exhibited in the past) does not mean that the district will automatically be required to fund the student’s private school placement prospectively. It is often relatively easy for a district to implement a prospective fix of its own program, particularly where, as here, the hearing officer has signaled that this alteration will render the program appropriate. Unfortunately, if the district does that, the parents may be left with a choice among unpalatable alternatives. They can reject the district’s revised program (assuming that they have valid objections unrelated to the program’s structure), which will almost certainly lead to another round of litigation over the appropriateness of that program.[3]  If such objections are not available to the parents or if they do not believe that their arguments are likely to prevail in light of the hearing officer’s strong intimation, the parents will likely be forced either to return the student to public school or to continue the private school placement at their own expense.

Reimbursement ordered for one year’s unilateral placement of dyslexic student; “locate or create” order issued for next

One of the two decisions released belatedly this quarter, Hampden-Wilbraham Regional School District, BSEA #1505285, 24 MSER 208 (Reichbach, 8/19/15), forms a companion piece to Andover Public Schools (discussed above), in that a different hearing officer took a similar approach to remedies in a similar dispute over a unilateral placement. In Hampden-Wilbraham, the parents of a child with dyslexia, ADHD, and a reading disorder rejected the district’s inclusion program and placed the student unilaterally at the Curtis Blake Day School midway through second grade (2014-2015 school year). For third grade (2015-2016), the district proposed to create a substantially separate “Focus program,” which did not yet exist and for which peers had not yet been definitely identified.

The hearing officer found that the district’s proposed inclusion programs for second grade were inappropriate. She observed that the student’s IEP might have been “‘objectively reasonable’” as of the start of the student’s second-grade year, when she moved from private school to public school, based on the information available to the district at the time. 24 MSER at 223 (quoting Roland M. v. Concord Sch. Comm., 910 F.2d 983, 992 (1st Cir. 1990)).[4] Once the teachers and administrators in the public school came to know the student, however, “they were able to form a more complete picture of her needs.” 24 MSER at 223. In addition, the parents obtained independent neuropsychological and speech-language evaluations, both of which recommended intensification of services in a separate language-based setting. The district agreed that the student needed more services than she had been receiving and agreed that she needed evidence-based multisensory reading instruction, but did not agree on the placement model. As the hearing officer explained, “The difference was in the delivery: the District endorsed a full inclusion model and as District personnel became aware that [the student] needed more, the ‘more’ the District provided was in the form of pull-outs,” despite the independent evaluators’ recommendations and despite the district’s knowledge that the student was frustrated by pull-out instruction and that it was taking an emotional toll on her. Id.

As in Andover, the hearing officer found that the parents’ independent experts credibly described the student’s needs. Accepting their testimony, she concluded that the student “requires instruction a substantially separate, language-based classroom, using evidence based programs and a multisensory approach across all academic areas throughout her school day.” 24 MSER at 223. The hearing officer found that the district’s failure to provide such instruction, “[d]espite the substantial information it had in its possession on or before [the date of the last Team meeting before the child’s removal from the district],” was not objectively reasonable and deprived the student of FAPE. Id. “Even with careful coordination among all instructors and service providers,” the hearing officer stated, “it would be difficult for a child with [the student’s] profile . . . to manage 17 pull-outs per week,” as the district’s program would have required her to do.

Moreover, despite having found that the student required opportunities for inclusion with typical peers, the hearing officer concluded that “the benefits she would have received from mainstreaming at this point ‘are far outweighed by the benefits gained from services which could not feasibly be provided in the non-segregated setting . . .’” Id. (quoting Pachl v. Seagren, 453 F.3d 1064, 1068 (8th Cir. 2006)). This case, like Andover, makes clear that LRE does not require adherence to inclusion at all costs. Rather, it requires a weighing of the benefits that the students might derive from an inclusionary environment against those that he or she would receive from a more intensive substantially separate education. In both Andover and Hampden-Wilbraham, the hearing officer found—rightly, we think, in light of the evidence adduced—that the balance weighed in favor of the separate setting. In addition, as the hearing officer in Hampden-Wilbraham went on to explain, the fact that Curtis Blake “may have been too restrictive a placement for [the student] in that it did not provide any opportunities for mainstreaming with her typically-developing peers” was not fatal to the parents’ reimbursement case, as “parents who make unilateral placements owing to an IEP deemed by a Hearing Officer to be inappropriate are not bound by the same legal obligations that govern school districts.” 24 MSER at 224 (citing Florence County Sch. Dist. Four v. Carter, 510 U.S. 7, 12-13 (1993)).

As in Andover, the hearing officer ordered retroactive reimbursement through the end of second grade (here, six months’ worth) for the cost of the private school. She then briefly considered the “Focus program,” in which the district proposed to place the student for third grade (2015-2016), but which did not yet exist as of the time of the hearing (and which might not exist at all during the 2015-2016 school year, since it required at least three students and none had yet accepted).[5]

The hearing officer [first] stated that “it would be premature for me to find that the Focus Program is appropriate to meet [the student’s] needs,” given that the program was “still in its formative stages at the time of the hearing” and the district had not yet developed an IEP placing the student in the program. 24 MSER at 224. The hearing officer therefore issued a “locate or create” order, requiring the district either to place the student in a “substantially separate language-based program . . . with opportunities for inclusion” or to develop the equivalent in-house. Id. (We note that the requirement of inclusion would rule out Curtis Blake, despite its evident appropriateness for the student in every other respect. See id. at 218-20, 224.)

We think that the hearing officer should have ended the discussion at this point, without commenting on the appropriateness (or not) of the Focus program. Any such observations would necessarily be speculative, as the hearing officer herself had earlier acknowledged (“given the fact that none [of the potential peers] have accepted the [Focus] placement, . . . a review of whether any particular student is an appropriate peer for [the student] would require speculation”). 24 MSER at 221. Nevertheless, the hearing officer went on to state that, “should the Focus Program materialize as described by [its proposed lead teacher], in the form of a substantially separate, language-based program with appropriate peers that incorporates Lindamood Bell and other evidence based reading strategies across the curriculum, with opportunities for inclusion and flexibility based on students’ needs, it would be appropriate for [the student].” 24 MSER at 224.

One questions, first, how the program described by the district could be considered substantially separate, as students would attend half of their core academic subjects (science and social studies), as well as morning meeting and all specials, in the regular education setting. Id. at 221. Even assuming that the student somehow could nevertheless spend more than 60% of her time in the pull-out setting as a substantially separate placement requires, see id. at 220 n. 54, one also questions how the hearing officer could entertain the idea that a program requiring mainstream science and social studies could be appropriate for this student. The hearing officer’s explicit acceptance of the independent evaluators’ conclusions that the student required a separate language-based classroom “across all academic areas throughout her school day,” 24 MSER at 223 (emphasis added), appears diametrically at odds with that concept.

In this case, as in Andover, the hearing officer’s near-endorsement of the district’s not-yet-extant program places a thumb on the district’s side of the scale in any future dispute over that program,[6] with a corresponding chilling effect on the parents’ choices going forward. We appreciate that the hearing officers in both cases were attempting to help the parties by giving some guidance as to their likely views in future disputes. We think that the better course, however, would have been to remain entirely neutral and refrain from such predictions.

Manifestation determination reviews: errors abound

The Taunton, BSEA #1708888, 24 MSER 125 (Reichbach, 7/26/18), case is the BSEA’s lengthiest decision this quarter. The facts are quite involved, but they coalesce to illustrate a single, discouraging theme: the administrators and staff within Taunton’s special education department lacked a fundamental understanding (at best) or possessed an utter disregard (at worst) for their obligations under federal and state law, particularly with respect to matters involving student discipline.

The student, Adam, a high schooler with an emotional impairment and trauma history, was suspended for at least 29 days over the course of two school years. The parent’s claims largely centered on these exclusions, with her IDEA claims relating to Taunton’s procedural violations and her Section 504 claims relating to Taunton’s discrimination against Adam on the basis of his disability. (Some of the parent’s claims were more nuanced, but we need not delve into the details for the purposes of this comment). Overall, Taunton’s failures to conduct manifestation determination reviews (“MDRs”) in connection with Adam’s suspensions beyond 10 days during each of the two school years at issue amply supported the parent’s IDEA and Section 504 claims.

The evidence showed that Taunton was aware that Adam had been experiencing difficulty upon his transition to high school. By February of his ninth-grade year, Adam’s behavior began declining. He was suspended numerous times for a variety of infractions, including verbal altercations, using vulgar language, cutting class, leaving the school building, smoking an electronic cigarette, possessing a laser light, and being disruptive and disrespectful. Even after Adam had been excluded for 10 cumulative days, Taunton did not, as required by law, conduct an MDR. The following school year proceeded much the same way, with Adam receiving multiple suspensions exceeding ten cumulative days and Taunton failing to conduct even a single MDR.

While Taunton’s failure to conduct MDRs is alone concerning, the testimony elicited from administrators and staff at the hearing may be even more troubling. In fact, following a previous expedited hearing involving the same parties, Taunton revamped its MDR process and engaged in professional development on the subject. Despite this training, the hearing officer stated, “the testimony of key individuals at Taunton High School and in district-wide position [sic] reveals that they are still unclear as to laws regarding the discipline of students with disabilities.” 24 MSER at 137. For instance, administrators testified that a student could be precluded from attending school until s/he completed a risk assessment; that there is no need for formal written invitations for MDRs because the invitations would be received after the MDR, which would be conducted whether a parent was notified or not; that a suspension lasting more than ten days does not constitute a change in placement; that a student under eighteen can voluntarily withdraw her/himself from special education; and so on. These statements, of course, are all blatant errors of law.

Under the IDEA’s disciplinary provision (20 U.S.C. § 1415(k)(1)(E)(i)) and regulations (34 C.F.R. § 300.530(e)), a school district, with exceptions not applicable here, may not change the placement of a student with a disability for disciplinary purposes if the conduct triggering the discipline is a manifestation of the student’s disability, or, in other words, was caused by or has a direct, substantial relationship to the disability. In this context, federal law defines a “change in placement” as the removal of the student for more than ten consecutive days or a pattern of removals totaling more than ten cumulative days in any given school year. Within 10 days of a decision to change a student’s placement for disciplinary purposes, the IEP team must meet to determine whether the conduct was a manifestation of the student’s disability or was the direct result of the district’s failure to implement the student’s IEP. That meeting is the required MDR. If the IEP team determines that the conduct was a manifestation, it is then required to conduct a functional behavioral assessment (“FBA”) and implement or modify a behavioral intervention plan (“BIP”).

Here, the hearing officer determined that Taunton excluded Adam for more than 10 cumulative school days each school year for substantially similar behavior, constituting a change in his placement. At that point, Taunton’s obligation to conduct MDRs relative to Adam’s conduct was undoubtedly triggered, yet no MDR ever occurred, no FBA was ever conducted, and no BIP was ever developed. The hearing officer found that Taunton’s repeated failure to conduct MDRs amounted to procedural errors depriving him of a FAPE. The hearing officer additionally found that this repeated failure “departed substantially from accepted professional judgment” and, therefore, “constituted gross misjudgment” amounting to disability-based discrimination under Section 504. 24 MSER at 146.

Reaching the bounds of her authority to redress these serious violations, the hearing officer ordered Taunton to convene Adam’s IEP team to develop a plan of services to compensate him for the 29 days for which he was improperly excluded from school. She also referred the matter to state’s Department of Elementary and Secondary Education (“DESE”). We hope that DESE will act swiftly to address what appear to be systematic failures within Taunton that serve to exclude and penalize a vulnerable population of students who, as compared to their non-disabled peers, are already disproportionately represented in the school-to-prison pipeline.

Residential placement parameters: need must be educational, not simply for safety

Nearly every quarter, the BSEA considers one or more cases in which parents seek residential placement. Parents often assume that these cases turn on the severity of the student’s behavior at home. That the student may pose a danger at home is not enough in and of itself, however. As Silver Lake Regional School District, BSEA #1801959, 24 MSER 147 (Byrne, 8/2/18), makes clear, parents must demonstrate that a residential placement is required for educational reasons, and not strictly to keep the student and/or his family safe.

The student in Silver Lake was 20 years old. He was diagnosed with autism spectrum disorder, obsessive-compulsive disorder, and a language learning disorder. His intellectual performance was extremely low. His adaptive skills fell below the 1st percentile. He had attended a day program at the New England Center for Children (“NECC”) from the age of five. His pro se parent sought a residential placement at the Cardinal Cushing School on the grounds that, as she grew older, she was not able to supervise or control him properly at home. The student had displayed several instances of aggression at home and had eloped (bolted) more than once when in the community. He did not display such behaviors at school. The parent submitted a report from an independent neuropsychologist and a letter from the student’s neurologist, both of whom stated that the student needed a residential placement for safety reasons.

The hearing officer framed the central issue as “whether around-the-clock educational services are necessary to enable the student to make meaningful educational progress in the areas identified as special needs, or whether the challenges a student experiences or presents outside of the school setting are ‘separable from [the student’s] educational problems.’” 24 MSER at 151 (quoting Gonzalez v. Puerto Rico Dep’t of Education, 254 F.3d 350, 352-53 (1st Cir. 2001)). In other words, the need for residential placement must be “inextricably linked to the development of attainable, educational skills.” 24 MSER at 152.

The hearing officer found that the parent failed to carry her burden of proof on this issue. Relying on NECC’s progress reports from the previous two school years, the hearing officer concluded that the student had made “stable progress toward acquisition of goals identified as priority target areas in each year’s IEP,” which included social behavior and community skills. 24 MSER at 151. There “was no significant evidence of failure to achieve agreed upon objectives, no pattern of over or under achievement, no instances of unexplained regression.” Id. Thus, the hearing officer concluded, the student was deriving meaningful educational benefit from his day program at NECC and did not require a residential placement. The reports and testimony of the parent’s independent experts failed to compel a different result. Those experts had focused not on the student’s educational needs, but instead on his “size and age, as well as [his mother’s] concerns for her capacity to supervise him and for her own safety, as the factors prompting them to make their recommendations for a residential placement.” Id. Because these factors were not education-related, the hearing officer found them insufficient to demonstrate the need for a residential placement.

What type of evidence might have persuaded the hearing officer to reach a different conclusion? Her discussion of the experts’ opinions (and what their reports did not say) provides some clues. Their reports and testimony might have led the hearing officer to order a residential placement had they stated that the student:

· “requires 24-hour intervention and programming in order to maintain acquired academic, language, social or behavioral skills or to learn necessary new ones”;

· “could not make educational progress in the absence of 24-hour educational programming”;

· “could not reach his identified educational potential absent 24-hour programming”; or

· due to the nature and extent of his disabilities, “could not access or benefit from [his day program].”

24 MSER at 151. Parents seeking residential placement would do well to bear these factors in mind and to measure their experts’ recommendations against them.

The hearing officer expressed sympathy for the parent’s plight, stating that the case “persuasively demonstrated the unfortunate gap in supportive services available to the hardworking and vulnerable families the Commonwealth relies on to meet the multifaceted, day-to-day needs of family members with significant disabilities.” 23 MSER at 152. She observed that the remedy, however, “is beyond the scope of the IDEA,” and rests instead “with our communities and our legislature.” Id.

We do wonder whether it might not have been possible for the parent, perhaps with the assistance of counsel, to obtain a residential placement if the case had been prepared and presented differently. “Educational” needs include the development of social, emotional, behavioral, adaptive living, self-care, community safety, and vocational skills, particularly for students of transition age such as this one. A transition specialist or occupational therapist might have been able to show that the student, with adaptive skills below the 1st percentile, was not in fact making effective progress in acquiring daily living and self-care skills in his day program, and required instruction and repeated practice in a round-the-clock educational environment to do so. As another example, the fact that the student was unsafe in the community due to his bolting might have been used to demonstrate that the student was not making effective progress in acquiring community safety skills, since he had failed to generalize them from the halls of NECC to the streets of his neighborhood. A BCBA or other behavioral specialist might have been able to show that the student required a controlled educational environment, consistently applying behavioral principles 24 hours per day, in order for the student to learn to apply community safety skills across all environments. Similarly, the fact that the student was aggressive at home might have demonstrated that he had failed to acquire solid social behavior skills, as he was not generalizing the skills he was taught at school to the home environment (and would be unlikely to generalize them to a group living or work environment, both of which are important for transition). Again, if 24-hour programming were necessary to achieve this result, and a behaviorist so testified, the outcome of the case might have been different. On the evidence as presented, however, the hearing officer had little choice but to reach the conclusion she did.

FAPE: the uneven battleground

We have seen a rise in the number of cases in which the school district is the party that files for a hearing. The Millbury, BSEA #1801409, 24 MSER 152 (Byrne, 11/10/17), case is one of them. There, the district sought an order that its proposed IEP for the student, Walter, was appropriate. The district also sought substitute consent for a home assessment. The hearing officer deemed Millbury’s IEP appropriate but denied its request for substitute consent.

At the outset of the hearing, Millbury moved for a default judgment on the basis that the parents had not engaged whatsoever in the BSEA process or appeared at hearing. The hearing officer denied the motion, and the hearing proceeded without the parents. Millbury introduced evidence showing that Walter, a sixteen-year-old with ADHD and an emotional disability, was referred by Millbury to the GROW School (“GROW”), a therapeutic public day program, for a 45-day assessment after he caused significant damage to Millbury High School (“MHS”) property on a weekend evening, resulting in felony charges. The referral followed on the heels of a tough school year for Walter at MHS, during which he engaged in escalating incidents of disruptive behavior and chronic school refusal. The parents agreed to the assessment and Walter’s remaining at GROW thereafter, but they did not formally sign the IEP providing for Walter’s placement within the GROW program.

Over the course of the school year at GROW, Walter’s behavior, attendance, and academic performance all improved, albeit not completely. At the end of the school year, the parents requested that Walter return to MHS. Walter’s IEP team continued to propose GROW, adding some services and requesting the parents’ consent for a home assessment in order to gather information relevant to Walter’s school attendance. The parents did not respond to the proposed IEP or home assessment, and Walter returned to MHS pursuant to his right to “stay put.” Millbury then filed for a hearing to prove that GROW constituted an appropriate placement for Walter.

Considering the parents’ absence from the hearing process, Millbury had no trouble demonstrating by a preponderance of the evidence that its proposed IEP calling for Walter’s placement at GROW was reasonably calculated to provide him with a FAPE. According to the hearing officer, the uncontroverted evidence showed that Walter’s slow and steady improvements at GROW—in contrast to his negative behaviors and deteriorating academics at MHS the year prior—established that GROW was appropriate. While Millbury proved that its IEP was appropriate, however, it did not carry the “significant burden” of showing that an unwelcome and intrusive home assessment was necessary for the implementation of an otherwise appropriate IEP.

In this case, the parents were either unwilling or unable to engage in the hearing process, potentially for a multitude of very sound reasons. We are hard-pressed to think of a situation in which, if the tables were turned, a school district would likewise abstain from the hearing process. Such litigation can, unfortunately, be both complicated and expensive. Parents always face a sophisticated adversary that is well-armed with lawyers, witnesses, and experts. Parents are constantly fighting an uphill, uneven battle, whether or not they appear to be on the frontlines. We applaud the hearing officer for denying the district’s request for a default judgment and proceeding with the hearing, rendering a considered decision despite the parents’ absence from the process.

Transportation: the inconvenient truth

The Sharon, BSEA #1807731, 24 MSER 123 (Putney-Yaceshyn, 7/23/18), decision involved a discrete issue which the hearing officer decided on the papers, namely, whether the parents were entitled to reimbursement from the district for the cost of transporting the student between her day school and a respite facility.

The student, a 17-year old with an emotional disability, attended an out-of-district therapeutic program pursuant to an IEP. She had a history of requiring hospitalization during periods of emotional change. Thus, when one of the parents had to undergo major surgery, they placed her at a respite facility in Framingham, where she lived for approximately two weeks. The parents requested that Sharon fund the student’s transportation between her school and the respite facility during that time. Sharon declined.

The hearing officer began her analysis by questioning why the parents had sought reimbursement for the full cost of transportation when their own records showed that that the Department of Mental Health (“DMH”) funded the student’s transport for nearly half of the ten days at issue. Since it was clear that the parents could not recover twice for the same costs, the hearing officer easily moved on to address the parents’ claims relative to the remaining six days.

Massachusetts regulations (603 CMR 28.05(a)(1), (b)(2)) contemplate two scenarios in which the district is obligated to provide transportation to a student. Neither scenario applied to the facts here. In the first scenario, a student is entitled to transportation to an out-of-district program when the student is placed in that program by the district and “regular transportation” is noted on the student’s IEP. In the second, a student is entitled to transportation to any program provided by the district in which the student participates when “special transportation” is noted on the student’s IEP. The respite facility was neither the student’s placement (under the first scenario) nor a program provided by the district (under the second).

Persuaded that the parents had placed the student in the respite facility based on “personal factors,” or as the district argued, “parental convenience,” the hearing officer denied the parents’ request for reimbursement. 24 MSER at 124. That much is clear. The hearing officer, however, also appeared to consider whether anything in the record suggested that the student’s placement in the respite facility was necessary for her educational program. There was no such evidence, and it is unclear whether the hearing officer would have ruled differently had the parents demonstrated that the respite placement was indeed educationally necessary.

Summary judgment and pro se parents

Both Newton, BSEA #1810148, 24 MSER 161 (Byrne, 8/23/18), and Marshfield, BSEA #1803420, 24 MSER 201 (Reichbach, 9/4/18), concern rulings on the districts’ motions for summary judgment in cases with pro se parents. In Newton, the parents’ pro se status expressly inured to their benefit, and the district’s motion was denied. In Marshfield, that status may have had an implicit impact, but the district’s motion was nevertheless allowed.

It is well-settled that summary judgment may enter only if the evidence shows that that there is no genuine issue of material fact. In rendering her ruling, the hearing officer in Newton emphasized that the IDEA and its state counterpart, MGL c. 71B, favor the robust exchange of information. Dispositive motions, such as one for summary judgment, she stated, are disfavored, particularly where the parents are not represented. Reasoning that the parents had pointed out factual differences, “however tangential or implausible,” between their position and the district’s, the hearing officer denied the district’s motion without delving into the facts. 24 MSER at 161. In Marshfield, however, the hearing officer thoughtfully considered a litany of facts, including, it appears, even those which the parents may have introduced through potentially improper procedure. While the parents placed certain facts at issue, none of them tended to demonstrate the crux of their claims. Thus, the parents’ right to relief was nothing more than speculation, and summary judgment was granted.

Parent’s loss of decisionmaking authority leads to loss of standing

At issue in Wellesley Public Schools, BSEA #1809988, 24 MSER 206 (Reichbach, 9/11/18), was a divorced parent’s ability to pursue a claim for prospective relief. The mother of a student with celiac disease sought an order allowing the student to use a microwave to heat her lunch at school, arguing that the district’s refusal to do so violated the student’s Section 504 rights. The district moved for summary judgment, asserting that the mother lacked standing to obtain the relief she sought.

At the time she filed her hearing request, the mother had full legal custody of the student. The following month, the Probate and Family Court transferred all educational decisionmaking to the father, who was not a party to the BSEA proceeding. The hearing officer granted summary judgment to the district, finding that the mother did not have standing because she sought “prospective relief in the form of an Order that would govern the relationship between [the student] and the school district for a time period in which she does not have educational decisonmaking authority.” 24 MSER at 207. The hearing officer distinguished this situation from one in which a parent seeks compensatory relief “‘stemming from events that occurred while she had custody of her child’”; such a parent “‘does not lose standing to pursue that complaint on his behalf by virtue of the fact that she lost custody of him subsequent to the filing of her claim.’” Id. (quoting Framingham Pub. Sch., 22 MSER 81, 84 (Reichbach, 2016)). Here, because the only relief the mother sought was prospective, the case could not go forward and the issue as to the use of a microwave as an accommodation must await another day.

District of residence not a necessary party to case brought by student in school choice program

The student in Taunton Public Schools, BSEA #1810830, 24 MSER 157 (Reichbach, 8/16/18), resided in Taunton but attended the Norton Public Schools through the school choice program (MGL c. 76, § 12B). The parent rejected the June 2018 graduation date on Norton’s 2018-2019 IEP and sought an additional year of transition services. She brought a hearing request against both districts. Taunton moved to dismiss itself as a party, arguing that it was neither programmatically nor financially responsible for the student under 603 CMR 28.10(6), and thus was not a necessary party under BSEA Rule I(J).

The hearing officer agreed that Taunton was not a necessary party and granted the motion to dismiss. She suggested, however, that Taunton might well wish to rejoin the case in the future. As the hearing officer stated, under 603 CMR 28.10(6), Norton has programmatic and financial responsibility for students attending its schools under the school choice program, except that Norton “‘may bill and receive payment from [Taunton] for the costs of out-of-district placements’ it makes for students with special needs who reside in Taunton.” 24 MSER at 160 (quoting 603 CMR 28.10(6)(b)). If Norton were to decide to propose an out-of-district placement to resolve the matter, or if the hearing officer were to order Norton to place the student out of district (whether as compensatory or as prospective relief), Norton would be able to bill Taunton for the cost. Because either scenario could happen without Taunton’s participation, Taunton was not a necessary party and its absence would cause no prejudice to Norton or the parent. In fact, the hearing officer stated, “it is Taunton . . . that bears the risk of prejudice from its absence from the current proceedings.” Id. The hearing officer granted Taunton’s motion but indicated that Taunton could seek to rejoin the matter voluntarily in the future, so as to be heard on the issue of financial responsibility for any out-of-district placement that Norton might make in its absence.

Discovery of peer IEPs, properly redacted, should be non-issue

One wonders why the district’s motion for a protective order in Beverly Public Schools, BSEA #1810763, 24 MSER 156 (Byrne, 8/14/18), was ever brought. The parents had sought discovery of redacted IEPs of peers with whom the student was grouped in the district’s substantially separate language-based program during the 2017-2018 school year and those with whom the district proposed to group the student in 2018-2019. The district argued that the requests were overly broad and irrelevant, and infringed upon the other students’ privacy rights. However, these types of requests are commonly brought by parents and commonly upheld by hearing officers, creating “a long line of consistent decisions” from which the hearing officer in this case refused to depart. Id.

As the hearing officer stated, the information that the parent requested was “directly relevant to one of their primary claims,” as it “[went] to the heart of their assertion that the peer group in which Beverly proposes to educate the Student is inappropriate for him.” 24 MSER at 157. She observed that the request was “carefully limited in time, nature and scope and is thus not overbroad.” Id. The peer IEPs “provide critical information known to the School, and not otherwise readily ascertainable by the Parents before hearing, about the level, materials and strategies of instruction, as well as student/adult presence, movement, behaviors and expectations.” Id. The other students’ privacy rights would be protected by the redaction of all personally identifiable information. Thus, the hearing officer denied the motion for protective order and ordered the district to provide the redacted IEPs. As is usual, she ordered that the documents be provided only to parents’ counsel, who was permitted to share them with the parents’ experts but not to disclose the documents or information contained therein to the parents, student, or anyone else, and who was required to return the documents to the district at the conclusion of the case.

Hearing officer has discretion to extend 10-day period for filing of discovery objections

Another discovery-related ruling, in Gardner Public Schools, Athol-Royalston Regional School District, BSEA #1811410, 24 MSER 205 (Berman, 9/11/18), arose from a district’s request for written findings following the hearing officer’s one-word ruling that granted a guardian’s motion for extension of the 10-day period to file objections to the district’s discovery, pursuant to BSEA Rule VI.B. The district argued that, although the rule allowed the hearing officer to enlarge the time for filing of discovery responses, the hearing officer lacked discretion to extend the time for filing of objections for equitable or any other reasons.

The hearing officer rejected this argument, stating: “For a hearing officer to be able to grant extensions of time for actual responses to discovery but be precluded from granting a request to extend the 10-day objection to discovery under appropriate circumstances, resulting in mandatory waiver of any such objections, would be anomalous and serve only to preclude reasonable, non-prejudicial flexibility in procedural matters such as discovery.” 24 MSER at 206. The hearing officer concluded that the guardian’s counsel had acted reasonably and appropriately in seeking an extension after entering the case and learning that a lay advocate who had previously represented the parents had not filed timely objections. She also concluded that the district would suffer no prejudice, as the hearing was not imminent (at the time of the hearing officer’s initial order, it was nearly two months away). For these reasons, the hearing officer stated, the original order “was a reasonable and appropriate extension of the hearing officer’s discretion.” Id. We agree. n

[1] The school’s policy limited absences to approximately 10% of the school year. Bay Path, as a vocational school, alternates between weeks of “academic” and “shop” classes. Students were not permitted to miss more than 20 academic class periods (equivalent to 10 full school days per year) and 8 days of shop. Requirements for freshmen were more stringent.
[2] We note that the hearing officer placed the burden of proof on the parents, as the moving party. 24 MSER at 173. This appears inconsistent with statements made by the BSEA in other cases, to the effect that the party seeking to change the status quo placement (which in this case would be CMC) has the burden of proof. E.g., Millbury Pub. Sch., BSEA #1801409, 24 MSER 152 (Byrne, 11/10/17).
[3] An issue may arise as to what the student’s stay‑put placement will be if the parents reject an IEP for a revised version of the district’s program. Because the hearing officer’s approval of Landmark for 2017‑2018 functions as an agreement between parents and district on the student’s placement, see, e.g., Foxborough Pub. Sch., BSEA #10‑6287, #10‑7942, 16 MSER 214 (Byrne, 2010), presumably his stay‑put placement during the following year will be Landmark. In that event, a district would likely commence litigation against the parents, in an attempt to get out from under the stay‑put obligation.
[4] The student had been on an IEP for the two preceding years while in private school, so the district did have knowledge of her needs when she entered public school.
[5] As in Andover, the hearing took place at the end of the student’s second‑grade year and the decision issued during the summer, before the disputed third‑grade year began. Conceivably, the respective hearing officers might have allowed the Andover and/or Hampden‑Wilbraham students to finish the third‑grade year in their private schools if the decision had issued after the start of that year, given that the district had not offered an appropriate program as of the time when the parents had to decide whether to send the student back to the private school.
[6] We note that the hearing officer who issued the decision would ordinarily be the one to determine any dispute over compliance with that decision.