Overview

Commentary on Massachusetts Special Education Decisions: 4th Quarter, 2018, by Daniel T.S. Heffernan:

April 25, 2019

INTRODUCTION

The districts “ran the table” in the five placement decisions this quarter, each time establishing that the program the district proposed provided FAPE. In Winchester Public Schools, BSEA #1804106, 24 MSER 227 (Berman 2018), we see again that programmatic perfection is not the standard. There, the parent was unsuccessful in obtaining reimbursement and prospective funding for a residential placement at the College Internship Program (“CIP”), not because CIP is an unapproved program, but because the district’s transition program, while not perfect, adequately addressed the student’s needs. Families and their attorneys and advocates can take solace in the fact that the hearing officers found the programs appropriate in each case only after it was demonstrated that the student was making significant, specific and demonstrable progress in the district’s placement and that the district incorporated recommendations from private evaluators. This is manifest in Swampscott Public Schools, BSEA #1806246, 24 MSER 271 (Berman 2018), where the student received no specialized instruction in her private kindergarten and 1st grade. Prior to entering the public school, Swampscott proposed ESY services before the student’s first year in the public school as well as a meaty IEP for the school year. The district did not stand pat on this IEP, but rather revised it four times during the year, even providing mid-year placement in their language-based program. Similarly, in Somerset Public School and Ilya, BSEA #1902332, 24 MSER 266 (Byrne 2018), the parents’ claim for an outside placement failed not only because of the effective progress of the student in the district’s program, which incorporated specific recommendations of various experts, but also because the record was devoid of recommendations for placement in a substantially separate or out-of-district therapeutic program. In two cases, Nauset Regional School District and Roy, BSEA #1900585, 24 MSER 247 (Oliver 2018) and Somerset Public School and Ilya, BSEA #1902332, 24 MSER 266 (Byrne 2018), the parents failed in their attempts to keep their students in more inclusive settings. In ruling on a motion to dismiss, the hearing officer in Newton Public Schools and Issac, BSEA #1901975, 24 MSER 225 (Reichbach 2018) held that once proper notice of unilateral placement is given, the parents are not necessarily required to provide notice of a subsequent change of placement, even to one in Costa Rica, to preserve their rights for reimbursement. In Dracut Public Schools, BSEA #1903603, 24 MSER 285 (Figueroa 2018) and Haverhill Public Schools, BSEA #1900557 24 MSER 260 (Byrne 2018), the BSEA continued its consistent handling of discovery of peer information by allowing that production pursuant to certain conditions.

FISCAL YEAR 2018 BSEA STATISTICS

Before commenting on this quarter’s decisions, we offer an overview of the BSEA statistics for Fiscal Year 2018, relying in part on BSEA Director Reece Erlichman’s interesting insights into not only the invaluable work of the BSEA, but also into some trends regarding the subject matter of special education disputes in the Commonwealth.

As has been consistent since such statistics have been compiled, the number of rejected IEPs again increased.

FY18 – 11,900

FY17 – 11,400

FY16 – 10,800

FY15 – 10,280

While the number of hearing requests declined for the second year in a row, that number is close to prior years with the exception of a significant spike in FY16.

FY18 – 481

FY17 – 495

FY16 – 568

FY15 – 492

Matters going through full hearings resulting in written decisions were consistently around 50 per year until they declined significantly after FY13. Last year yielded the lowest number of full hearings (13) since the early days of the BSEA. The consensus is this is attributable to two factors. First, and most significantly, is the high number of matters that proceed to settlement conferences and the effectiveness of Reece Erlichman in getting those matters resolved. In FY18, there were 78 settlement conferences with 72 of those matters settling that day and most others settling thereafter. The other factor was the use of pre-trial motions to resolve matters completely or position them for resolution.

FY18 – 13

FY17 – 22

FY16 – 23

FY15 – 18

FY14 – 25

Y13 – 52

Of the 13 full hearings, the parents prevailed in only one. The parents were represented by counsel in that matter. The school district fully prevailed in 11 of the cases. In those, parents were represented by counsel in two, an advocate in one, were pro se in seven, and did not participate in one. The remaining full hearing decision involved a private school.

Since BSEA filings are confidential, the only publicly accessible information about those is what can be gleaned from the written decisions about a relatively small number of them. Reece Erlichman provided insight into some of the trends reflected in the bulk of the filings that do not become public. There was an increase in the number of challenges to the adequacy of manifestation determinations in discipline cases. There were increases in cases involving only Section 504 issues and cases involving students who are transgender. There are also matters involving METCO terminating students and what the obligation of the host school district is in those circumstances.

A full review of the BSEA statistics from the past 10 years can be found at https://www.mass.gov/bsea-statistics

The Parents Fail To Establish the Need for Placement in a Residential Transition Program

The student in Winchester Public Schools, BSEA #1804106, 24 MSER 227 (Berman 2018) was a 21-year-old man with schizoid personality disorder and impaired skills in communication, social interaction, executive functioning, self-care and self-direction. These disabilities impacted his ability to live with the independence commensurate with his age and intellectual abilities. The dispute was over the adequacy of Winchester’s proposed transition program at the SEEM Collaborative, in light of the parents’ unilateral placement at the DESE unapproved College Internship Program (CIP) in Lee, Massachusetts.

The student consistently scored in the “superior” range for cognitive abilities, above average academic abilities and was interested in attending college, living on his own and being gainfully employed. His disabilities significantly impacted his ability to communicate with others and manifested in being withdrawn and having little eye contact or reciprocal conversation. The student’s executive functioning deficits also impeded his ability to plan, initiate and complete not only academic tasks, but also basic life activities such as meal planning, finances and travel. He attended the Victor School, a therapeutic day school, for 12th grade. He availed himself of Victor’s transition services such as taking a class at Middlesex Community College (MCC) and various internships. He was quite successful with these and demonstrated his capacity for college level courses.

Towards the completion of the student’s time at Victor, Kelly Challen, a well-qualified transition expert, performed a private assessment of the student. Ms. Challen’s comprehensive evaluation relied on an earlier neuropsychological evaluation by Dr. David Dinklage, and included an observation of the student and consultation with other professionals and providers for the student. Ms. Challen recommended that the student be placed in a comprehensive, highly structured and cohesive program populated with similar peers “such as the Foundations for Life Program [FLL] run through SEEM Collaborative.” Winchester then offered an extended evaluation at the FLL program, which the parents accepted. FLL staff reported that the student made significant progress there and Winchester offered placement at the FLL for summer 2016 and the 2016-2017 school year. Ms. Challen acknowledged that the student made good progress during the extended evaluation but recommended some additions to the program such as direct executive functioning training and coordinated communication among the student’s home-based therapist and other providers. The parents accepted the placement at FLL, while partially rejecting the IEP for its failure to incorporate all of Ms. Challen’s recommendations.

In November 2016, the student had a private neuropsychological assessment with Amity Kulis, Psy.D, an associate of Ms. Challen’s. Dr. Kulis, who did not testify at hearing, concluded that the student had made significant progress at FLL. However, Dr. Kulis concluded that the student needed a supported residential placement in order to generalize his adaptive skills and manage academic tasks. Pamela Ely, a speech/language pathologist who ran an intensive, structured social skills and communication group for the student in summer 2016, seconded Dr. Kulis’s residential placement recommendation, opining that the student needed that setting to reinforce and thereby generalize his communication and socialization skills.

The parent unilaterally placed student at CIP for the 2017-2018 school year. CIP is a program that provides individualized social, academic, career and life skills instruction to students 18 to 26 years-old with “Asperger’s and learning differences.” At CIP, students live in shared living apartments, take courses at Berkshire Community College and receive individual and group instruction and coaching in social skills, independent living skills, and employment.

The hearing officer denied the parent’s request for reimbursement and prospective placement because of the adequacy of the district’s program and, therefore, did not address at all the appropriateness of CIP. She relied on the fact that the parents’ own evaluator, Kelly Challen, had initially recommended placement at FLL. In addition, the 2017-2018 IEP for placement at FLL incorporated many of the recommendations of the parent’s four evaluators. Lastly, Winchester established, and parent’s experts conceded, that the student made specific, significant and documented progress at FLL. This included successfully completing six courses at Bunker Hill Community College, acquiring a learner’s permit, expanding his cooking repertoire and improving his personal hygiene. The hearing officer credited the testimony of the parent and her experts but understood their opinions to be that FLL “was not perfect.” As “perfection” is not the standard by which to judge the appropriateness of a district’s program, the hearing officer denied the request for reimbursement and prospective placement at CIP.

Landmark Reimbursement and Placement Are Denied For a Third Grader After Only One Year in the Public School Program

Swampscott Public Schools, BSEA #1806246, 24 MSER 271 (Berman 2018) involved an eight-year-old girl with language based learning disability, characterized as dyslexia and dysgraphia, who was unilaterally placed by her parents at the Landmark School in Beverly, Massachusetts. The student attended a private school for kindergarten and first grade (2016-2017) and received no specialized services there. In response to the parents’ referral for special education services, Swampscott conducted initial assessments in April and May 2017 as well as an observation of the student in her private school. Swampscott proposed an IEP for the 2017-2018 school year, with an extended evaluation to be conducted during the first eight weeks of the school year. The proposal was for a partial inclusion program at Swampscott’s Clarke Elementary School. Parents requested placement in a substantially separate school for children with language based learning disabilities. They “conditionally” accepted the IEP while maintaining the program was insufficient. Swampscott also offered ESY services consisting of 45-minute sessions of reading services twice per week. The reading instruction conflicted with the student’s summer camp schedule and the parents reported that the student felt “shame, confusion and embarrassment” when she had to leave camp and explain her absence to her fellow campers.

Robert Kemper, Ph.D., CCC/SLP conducted a private neuropsychological assessment in August 2017 and observed the student in her Swampscott placement in early September. Dr. Kemper recommended that the student receive intensive services and be placed in a substantially separate program for students with language based learning disabilities. By September 6, 2017, the mother reported that the student felt depressed and hopeless about school and had to, on one occasion, be carried to the car to get there. The Team reconvened on September 7 and offered an amendment with modified classwork and homework and access to the school’s adjustment counselor as well as some compensatory math and language instruction that the student had missed from the previous summer. Subsequent to the September 19, 2017 Team meeting to review Dr. Kemper’s evaluation, Swampscott denied the parents’ request for a Landmark-type placement and proposed an amended IEP providing for consult from a speech language therapist and teacher, inclusion support and 5 x 60 reading 1:1 tutorial, 5 x 30 written language instruction, and 1 x 30 speech/language therapy.

On September 26, 2017, the parents filed a hearing request seeking placement at Landmark or the Carroll School. Parents withdrew this hearing request without prejudice on December 5, 2017. Dr. Kemper conducted an abbreviated re-evaluation on November 13, 2017. Dr. Kemper found that the student showed no progress on many measures, while progress in other areas was not statistically significant.

In November, Swampscott proposed placement in a substantially separate language based classroom (“LBLC”) within the Clarke Elementary School. Parents requested and were given an eight week extended evaluation of the student in the LBLC classroom beginning in mid-January 2018. In March 2018 the student underwent formal and informal assessments of her progress. Dr. Kemper performed an additional evaluation in March 2018, his third evaluation in seven months. He opined that the student had made little or no significant progress in areas necessary for the acquisition of literacy skills. At the March 20, 2018 Team meeting, the parents notified Swampscott that they would be unilaterally placing the student at Landmark for ESY 2018 and the subsequent school year. Swampscott’s April 2, 2018 IEP called for a continuation in the LBLC program with additional supports and services.

The eight-day hearing began on June 6 and concluded on October 10, 2018, and given the timing, there was no evidence about the student’s progress at Landmark.

The hearing officer denied the parents’ request for reimbursement and placement at Landmark for several reasons. First, it was undisputed that the student had matriculated into Swampscott as a second grader who had received no specialized services to address her significant language based learning disability. In response, Swampscott offered a robust IEP, even providing for services to begin before her first day in the regular school year. Significantly, Swampscott did not rest on this program but over the course of the school year, developed five successive IEPs that responded to the student’s special needs, increasing services and even offering a different program within the school, incorporating recommendations from all the evaluators, even Dr. Kemper. Swampscott’s witnesses testified convincingly that over a relatively short period of time in the Swampscott program, the student made demonstrable progress in certain areas and absorbed the 2nd grade curriculum and exhibited pride in her work and perceived herself as “a reader.”

Perhaps most fatal to the parents’ claim was the lack of credible evidence as to how much growth in standardized test scores would have been expected from this student in order to demonstrate lack of effective progress. While Dr. Kemper testified he would expect one year’s growth in one year’s time, he offered no support for that proposition. The parents could not point to a higher trajectory in the Landmark program and were unable to get any tactical “bang for their buck” for the unilateral placement, since the student had spent little time at Landmark even by the end of this protracted hearing. If, like most private schools, Landmark required much of the year’s tuition to have been already paid by the December 10, 2018 decision date, parents should have filed for hearing later allowing for the possibility of establishing a track record of greater progress under the Landmark program.

Somerset Public School and Ilya, BSEA #1902332, 24 MSER 266 (Byrne 2018) involved a 10-year-old 5th grade student with a pre-adoption history of severe neglect and abuse as an infant and toddler and who was diagnosed with ADHD, PTSD, Reactive Attachment Disorder, and dyslexia. There were “no evidentiary conflicts” regarding the student’s presentation. Parents sought prospective placement in a substantially separate therapeutic school. Somerset’s program incorporated the recommendations of the experts such as small class size, language based instruction, therapeutic intervention and supervision, and trained staff. There were no recommendations for outside placement in a substantially separate program or out-of-district therapeutic program. Concerning effective progress, the student had made good progress with fewer services and interventions than what was proposed going forward. Therefore the parents’ request for placement in a substantially separate therapeutic school was denied.

Parents Fail In Their Challenges to the District’s Proposal for a Less Restrictive Setting

The student in Nauset Regional School District and Roy, BSEA #1900585, 24 MSER 247 (Oliver 2018) was a 17-year-old high school senior with ASD, ADHD and ODD. He had receptive and expressive language disorders, behavioral regulation issues and executive functioning deficits. He spent all of middle school and high school in the district. His high school program was the Independent Learning Program (“ILP”), which in essence was a substantially separate program with mainstreaming for non-academic and elective classes. In 11th grade, all other upper class ILP students migrated into inclusion programs, which resulted in Roy’s ILP peer group consisting entirely of 9th grade students taking courses Roy had already completed. In November 2017, Nauset proposed, and parent accepted, an IEP providing Roy with 1:1 support in each mainstream class, plus academic support and a vocational class. In January 2018, the Nauset members of Roy’s Team expressed the unanimous opinion this program was not appropriate and proposed an out-of-district placement. Parents rejected that proposal. Nauset then funded an updated neuropsychological evaluation with Dr. Everett of the Melmark School in March-April 2018. At the June 2018 Team meeting, Nauset again proposed an out-of-district placement, this time at the Wayside Program in Sandwich, Massachusetts. Parents again rejected the out-of-district proposal. They sought to have him attend his “senior year” at Nauset High School (“NHS”), with support for him participating in extracurricular activities such as varsity tennis and the mountain biking club. Nauset filed seeking a determination that FAPE for Roy required a placement at Wayside.

Nauset, pursuant to Schaffer v. Weast, 126 S.Ct. 528 (2005), bore the burden of proof that FAPE was not in the LRE setting of NHS. The hearing officer agreed with Nauset that NHS was not an appropriate placement. Dr. Everett’s evaluation was consistent with earlier district-funded independent evaluations that Roy required a comprehensive program where his academic, attentional and language needs could be interwoven throughout his classes. These opinions were affirmed by Nauset staff who had worked with Roy for years. Significantly, this evidence was essentially unrebutted as the parents did not present any expert testimony or exhibits that supported their position that the placement at NHS appropriately addressed his needs and provided FAPE. Roy’s stated and problematic belief that “the rules don’t apply to me” was reinforced by the different criteria and different social, academic and behavioral rules that applied to Roy and did not apply to his classmates at NHS. At Wayside, he would be treated the same as the other students and get the intensive and consistent programming he required. Also, given the accommodating schedules of Wayside and NHS, Roy would still be able to participate in varsity tennis and mountain biking club, preserving his involvement in activities in his home community.

Walpole Public Schools and Dave, BSEA#1812768, 24 MSER 261 (Oliver 2018) involved another instance of parents’ failed attempt to resist the district’s transfer of the student into a more restrictive placement, this time one within the public school. The seven-year-old student had been attending his neighborhood school into 2nd grade. He manifested increasingly disruptive behaviors, aggressions towards peers, non-compliance, and non-conversational talk that included themes of violence. Walpole had previously found the student ineligible for an IEP, but eventually deemed him eligible based upon emotional disability. The student then underwent an extended evaluation with a 1:1 aide because of safety concerns. Walpole proposed placement in their Partnership Program, a substantially separate therapeutic program. The Parents rejected this placement and asserted their stay-put rights to the more mainstream placement. Walpole filed for hearing seeking a determination that the Partnership Program was necessary to provide FAPE. The parents maintained that the student’s issues were “maturational” and he would grow out of the problematic behaviors. However, the pro se parents offered no expert support for this proposition whereas the district’s position was founded upon expert testimony and extensive testing results from the district and their outside neuropsychologist. The hearing officer found that the “vast preponderance of the evidence” was that the current program did not provide FAPE and that the Partnership Program would. Again, while the legal obstacle to moving a student with a disability into a more restrictive setting is a significant one, it is not insurmountable and one must have expert support to do so.

Once Proper Notice Is Provided To The School District For A Unilateral Placement, The Parent Is Not Necessarily Required To Give Further Notice Of A Different Placement Or Changed Circumstances

Newton Public Schools and Issac, BSEA #1901975, 24 MSER 225 (Reichbach 2018) involved the parents’ claim for reimbursement for their son’s unilateral placement at Landmark for 2016-2017 school year and beyond. The parents gave proper notice of the unilateral placement at Landmark prior to the 2016-2017 school year. After that year, the student was hospitalized for mental health reasons in summer 2017 and then enrolled in True North, a residential therapeutic program in Vermont until January 2018, when he transferred to New Summit Academy in Costa Rica. Parents did not give specific notice of these subsequent placements or additional diagnoses of anxiety, depression and possibly PTSD. Newton moved to dismiss the portion of the hearing request seeking reimbursement for the time period of September 2017 forward based on the fact that the parents did not give notice of subsequent developments and placement. However, the federal Office of Special Education Programs (“OSEP”), in Letter to Miller (55 IDELR 293 [May 5, 2010]), determined that the notification requirement only applies at the time of the initial removal and continued outside enrollment does not require additional notification. The hearing officer here held that whether separate notice was required for the subsequent placements and, if so, whether the circumstances satisfied the exceptions to the notice requirement, were determinations that could not be made at the motion to dismiss stage, and denied Newton’s motion.

The BSEA Will Order Production of Peer Information with Certain Conditions

Dracut Public Schools, BSEA #1903603, 24 MSER 285 (Figueroa 2018) and Haverhill Public Schools, BSEA #1900557 24 MSER 260 (Byrne 2018) both involve the now well-trod area of discovery of peer information. In ruling on the districts’ motions for protective orders from producing such materials, both hearing officers noted that discovery requests about peers are “not novel” and the “long line of previous, consistent rulings” are that once it is shown that these records are relevant to the dispute, the district should produce the peer IEPs with the following conditions:

· Redact the peer IEPs of all identifiable information

· Limit the production to the parents’ attorney and experts

· Return or destroy the records at the end of the case

These consistent rulings should obviate the need for moving for such protective orders unless parents refuse to agree to the above conditions, preserving the resources of all involved. n

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