Overview

Commentary on Massachusetts Special Education Decisions: 1st Quarter 2020, by Melanie R. Jarboe:

November 25, 2020

INTRODUCTION

In the first quarter of 2020, the BSEA issued six substantive rulings and seven decisions. Of the six rulings, four involved requests for joinder (Brookline, Northampton, and two involving Quincy), one involved a request for an open hearing, (Medford) and one involved a motion to dismiss (Springfield). Parents were represented in two of the seven cases that proceeded through hearing (Topsfield and Holliston) and proceeded pro se in the remaining cases (Medford, North Middlesex, Swampscott, and two involving Quincy). Parents prevailed in only one case (Topsfield), in which parents challenged the district’s program as overly restrictive. As usual, the Hearing Officers grappled with a diverse set of issues, including a unilateral placement case, a PRS order for compensatory services, the availability of circuit breaker funds for unapproved programs, the meaning of FAPE for students who are home‑schooled, whether the district had appropriately implemented an IEP, and the appropriateness of a 45‑day placement made in light of safety concerns.

PARENTS WIN “LOCATE OR CREATE” ORDER

The only decision this term in which the parents prevailed was Topsfield Public Schools, BSEA #1909367, 26 MSER 18 (Berman, January 24, 2020). The student in Topsfield was a fourth grader with multiple physical, neurological, and developmental challenges, including microcephaly, focal seizures, hearing loss, cognitive delays, and language delays. The student’s disabilities impacted him across domains. He had attended Topsfield Public Schools since kindergarten. Outside evaluators expressed concern that the student required more peer interaction opportunities, stating that the student required a substantially separate placement with similar peers. However, Topsfield consistently reported that the student was making progress.

Parents engaged Brian Willoughby, Ph.D., to conduct a neuropsychological evaluation in January 2019. On standardized testing, the student’s academic skills were below expectations based on his cognitive abilities and his progress since 2017 testing had been “remarkably slow.” 24 MSER at 24. Dr. Willoughby echoed previous evaluators and recommended a cohesive and intensive substantially separate placement for students with developmental and learning challenges. He further opined that the student required infused social skills support across the day rather than in a pull‑out model.

Topsfield conducted its own testing in early 2019. Student’s scores indicated that he continued to function well below same‑age peers. Among other recommendations, Topsfield’s psychoeducational evaluator highlighted the need for explicit social skills instruction both in a small group setting with same‑aged peers and throughout the school day. The district’s speech‑language evaluator noted that highly structured small group interaction was essential in light of the student’s pragmatic language weaknesses.

At a March 2019 meeting to review testing by Dr. Willoughby and the district, the district recommended placement in a substantially separate classroom for ELA and math, and supported inclusion for science, social studies, non‑academic activities, and specials. The parents accepted the services but rejected the placement because it did not comply with Dr. Willoughby’s recommendations.

In April 2019, the parents’ educational specialist, Nicole Coman, observed the student in his inclusion social studies class. She concluded that the inclusion setting was inappropriate for the student because he was not accessing the lesson or interacting meaningfully with peers, despite prompting and support from the special education teacher and high‑quality instruction from the general education teacher. Ms. Coman also observed a substantially separate math class taught by the teacher who would teach the student the following fall, and felt that the peers were higher functioning than the student.

Following the parents’ request for hearing in April 2019, Topsfield issued a revised IEP pursuant to which the student would receive all academic instruction in a substantially separate setting. Though the parents were under the impression that this classroom would serve a small group of appropriate students, there were no appropriate peers for the student and all of his academic instruction (3.5 hours per day) was 1:1 with a special education teacher. Ms. Coman observed the student in October 2019. The student did not interact with any peers even during the “inclusion” portions of the day. Ms. Coman concluded that the placement was inappropriate because in both the inclusion and substantially separate portions of his program, the student lacked the opportunity to interact with peers, to develop relationships, and to socialize.

The parents maintained that Topsfield’s program was overly restrictive given the amount of 1:1 instruction student was receiving each day. Topsfield, in turn, argued that the student had made significant progress with 1:1 academic instruction and that he still had opportunities to interact with peers during the remainder of the school day.

Hearing Officer Sara Berman concluded that Topsfield’s IEP was inappropriate for the student given the significant amount of 1:1 instruction that had resulted from the lack of an appropriate peer group. She noted that the student was socially interested and motivated and that both Topsfield’s providers and parents’ evaluators had consistently emphasized the need for social skills interventions in a small group setting as well as opportunities to practice those skills throughout the day. No one had recommended 1:1 instruction, and even Topsfield’s witnesses testified that the 1:1 format deprived the student of the opportunity to practice his social skills. Hearing Officer Berman noted that the student’s participation in the general education setting for part of the day was of marginal benefit given the student’s social communication weaknesses when compared with his peers. Finally, Hearing Officer Berman noted that the fact that the student had made substantial progress with 1:1 instruction did not make this setting appropriate.

Hearing Officer Berman concluded that Topsfield’s IEP was inappropriate as implemented but could be made appropriate with the addition of an appropriate cohort of peers. While Hearing Officer Berman did not specify the number of peers that Topsfield would need to find to meet this threshold, she suggested that the Team invite other districts to place suitable peers in the student’s program if an appropriate cohort were not available in the district. If the district was unable to locate an appropriate cohort within ten calendar days, the district would have to locate a public or private out of district placement that had an appropriate cohort and could implement the student’s IEP.

Having won the argument that the proposed program denies the student a FAPE, a “locate or create” order is sometimes a pyrrhic victory for parents since the district is then empowered to propose any placement—in the district, in another district, at a collaborative, at a private day school, or anywhere else—that plausibly meets the hearing officer’s expressed criteria. While one hopes that Topsfield and the parents could come together within the ten‑day time period to locate or create a mutually acceptable program, if parents disagree that a proposed placement is appropriate, the burden is again on them to challenge its adequacy. To avoid a “locate or create” order, it is usually prudent to suggest a particular placement (or list of possible placements) to a hearing officer and to present testimony on the appropriateness of one or more of those suggestions. Here, however, it may be that the parents truly did not have an appropriate placement in mind or that they were invested in the student remaining in the public school setting if at all possible.

PARENTS LOSE PLACEMENT CASE FOR EAGLE HILL SCHOOL

Holliston Public Schools, BSEA #1910125, 26 MSER 1 (Berman, December 30, 2019), is a placement case concerning the Eagle Hill School in Hardwick, MA, which serves students with average to above‑average intelligence and a variety of learning challenges, including specific learning disabilities, nonverbal learning disorders, ADHD, and executive functioning weaknesses. Eagle Hill is not a Massachusetts‑approved special education school. The student’s father and aunt placed the student, who was diagnosed with ADHD and a significant neurological disability, at Eagle Hill in July 2018 during the summer prior to his eighth grade year after testing showed that the student’s cognitive scores had declined by eleven points since 2015.

At hearing, the father and aunt argued that the student was not making effective progress in Holliston, where he was placed in inclusion classes of eighteen or more students. They argued that the student was distracted and “lost” in his classes due to his disability, and that most actual instruction was confined to the one period per day that he spent in academic support. The student’s grades fell, he engaged in disruptive behavior, he became unhappy with school, and he expressed a desire to drop out as soon as possible. Holliston characterized the student’s behavioral and emotional status as minor and fairly typical for seventh grade boys, and disagreed that the student was failing to make effective progress. On the contrary, Holliston argued that the student had matured and become more invested in his learning over the course of his seventh grade year, and claimed he was successfully utilizing the strategies he learned in academic support to access his inclusion classes.

Hearing Officer Sara Berman first considered whether three IEPs dated June 2018, December 2018, and June 2019, were reasonably calculated to provide the student with a free, appropriate public education (FAPE). Holliston presented accepted IEPs and progress reports stretching back a number of years to show that the student was meeting his goals and was making effective progress. However, the student’s final grades for his last two years in the district were in the C and D range and teachers commented that his performance suffered due to his distractibility, lack of focus, low level of work production, and lack of independence. While the student had seven recorded disciplinary incidents, Holliston teachers testified that these were neither serious nor unusual for a student his age. Concerning Holliston’s 2018 testing showing that the student’s full‑scale IQ had dropped by approximately eleven points since the previous evaluation, the district testified that this drop was not statistically significant due to a change in test formats.

The Team met in June 2018 to review the district’s testing. At that meeting, the student’s aunt and father expressed their concerns with the student’s lack of progress and need for more intensive services, and provided notice that they would place the student at Eagle Hill and request reimbursement from the district. The district proposed a new IEP, which included additional goal areas requested by the family as well as counseling and ESY services. In response to the family’s expressed concerns, Holliston proposed conducting additional reading, social/emotional, and cognitive testing as well as a home assessment, and would also convene the Team again to continue discussing the family’s concerns. However, the family refused to provide consent for the testing and refused to attend any further meetings.

In August 2018, the family requested a publicly funded independent evaluation by Dr. Roberta Green, which Holliston agreed to fund. Dr. Green did view the decrease in the student’s cognitive scores as potential evidence of a lack of progress. Dr. Green concluded that the student had no specific learning disabilities but rather had ADHD and neurological impairments due to difficulties with sustained attention, storage and retrieval, language comprehension, and fluid reasoning. Among other recommendations, Dr. Green recommended small group learning with implementation of strategies across the curriculum.

The Team convened in December 2018 to consider Dr. Green’s report. At the meeting, Dr. Green stated that she had no opinion on the appropriateness of Holliston’s proposed placement for eighth grade because she had not yet observed it. She further stated that a larger inclusion class could potentially be appropriate if it could be broken down into smaller groups. Holliston subsequently amended the student’s IEP to include English in a substantially separate setting and math in a co‑taught setting, a change from the inclusion setting for both subjects. Holliston proposed further adjustments to goals and accommodations in response to Dr. Green’s recommendations.

Dr. Green observed the proposed placement in April 2019. At the family’s request, she did not write a report and instead reported on her observation only during her testimony. Dr. Green testified that it would be difficult to provide the student with the amount of repetition that he required in a single period of academic support, or that the type of instruction that he required could easily be provided in an inclusion setting unless the class could be broken into smaller groups. Critically, the proposed small‑group English class and co‑taught math class were held at the same time. Though Holliston noted that the school would change this schedule if student were to attend, this would seem a difficult task to accomplish midyear given the number of other students who would be affected. Though Dr. Green felt that the classes she observed were well‑run, she believed that the inclusion classes would have been inappropriate given the pace of instruction and the student’s deficits in language comprehension, concept formations, and memory skills.

Holliston proposed that Naami Turk, its own consulting neuropsychologist, conduct a clinical interview of the student and to observe him at Eagle Hill. The family refused both proposals, stating that the student was too fragile to be interviewed by anyone he did not have a long‑term relationship with, and that he would associate someone observing him (even someone he had never met) with his negative experiences in Holliston. The family stated that Holliston could observe at Eagle Hill as long as they did not observe the student.

After the family filed their hearing request in April 2019, and while she was responding to a discovery request in connection with the student’s case, Dr. Green discovered that she had made scoring errors in the student’s evaluation and produced an updated report. While Dr. Green stated that the errors did not affect her general formulation or recommendations, Holliston’s evaluators stated that the errors were significant and invalidated the entire report.

The Team met in June 2019 for the student’s annual review. Holliston proposed an IEP for the student’s ninth grade year (2019‑2020) that included placement in co‑taught classes for English and Math, and paraprofessional support for science and social studies. The IEP further noted that all classes were designed to be broken down into smaller groups. The family rejected the IEP and reiterated their request for reimbursement of Eagle Hill tuition.

Hearing Officer Berman concluded that the family had not met their burden of proving that Holliston’s IEPs were inadequate to provide the student with a FAPE. She found Holliston’s witnesses credible in their testimony that the student had made effective progress during seventh grade pursuant to a fully accepted IEP. Hearing Officer Berman further viewed the student’s academic progress, as reflected in the 2018 testing, as evidence of progress. She credited the testimony of Holliston’s witnesses in finding that the eleven‑point drop in the student’s full‑scale IQ was not statistically significant or indicative of a lack of effective progress when considered with other evidence. Having found that the student made effective progress in seventh grade, and given the addition of goals and services that were responsive to the family’s expressed concerns at the meeting, Hearing Officer Berman concluded that the June 2018 IEP was appropriate for the student’s eighth grade (2018‑2019) school year. Hearing Officer Berman further noted that the family had rejected additional testing by the district and presented “no outside evaluations or anything other than their own impressions” at the June 2018 IEP meeting to suggest that the student had not made effective progress in seventh grade or needed anything different for eighth grade. 26 MSER at 15.

Hearing Officer Berman also found that the December 2018 IEP was appropriate. She noted that Holliston amended the IEP to reflect many of Dr. Green’s suggestions, that Dr. Green did not state that the student required placement in substantially separate settings for all classes (as opposed to small groups within inclusion classes), and that Dr. Green did not take a position on the appropriateness of the eighth grade program. Hearing Officer further noted that Dr. Green failed to provide the Team with a report or any other information subsequent to her observation of the proposed program until her testimony at the hearing, which meant the Team had no opportunity to consider or respond to Dr. Green’s impressions of the program.

Finally, Hearing Officer Berman considered the June 2019 IEP and again found it appropriate. Hearing Officer Berman blamed the family for the lack of available data at the time the IEP was drafted, given that the family rejected Holliston’s proposal to have Dr. Turk interview and observe the student, Eagle Hill staff presented no more than general information about the student’s progress, and the family presented no evaluation or other information that would support a different placement. Hearing Officer Berman therefore concluded that the district had analyzed the limited data that it did have and proposed a ninth grade IEP that was reasonably calculated to provide the student a FAPE, and that Holliston could readily adjust the IEP as needed if the student returned to Holliston.

Given that Hearing Officer Berman had found all three of Holliston’s IEPs to be reasonably calculated to provide the student with a FAPE, she did not opine on the appropriateness of Eagle Hill except to say that the family had not met their burden of proof to secure public funding for the placement.

As we have seen time and time again at the BSEA, a student’s family will not meet their burden of proof in a unilateral placement case without clear and persuasive expert testimony, both from evaluators as well as from the placement itself, to support their argument that the district’s placement is inadequate and that the parents’ chosen placement is appropriate. Hearing Officer Berman found Holliston’s witnesses very credible, and noted several issues that impacted Dr. Green’s credibility. In addition, the family’s decision to reject proposed evaluations and to refuse an observation hurt them, both by making them appear uncooperative and in effect by lowering the bar that the district had to clear for their IEP to be seen as appropriate because they could attribute shortcomings in their IEP to not having as much information on the student as usual. So even though the student was struggling in seventh grade—by report of both school and family—and did well at Eagle Hill, and even though there are red flags (such as the overlapping English and math classes during the eighth grade year) suggesting that the proposal was not as appropriate as Holliston indicated, this case, like so many others, provides a cautionary tale that families will not carry their burden of proof without multiple, persuasive witnesses speaking clearly about a student’s needs and the program needed to meet those needs.

HOMESCHOOLING: DISTRICT’S IEP PROVIDES FAPE

Parents of a 16‑year‑old student (“Martin”) with a reading disability had rejected North Middlesex Regional School District’s proposed IEP, which included placement in a partial inclusion program at the public high school. The parents had homeschooled Martin for his entire educational career, and continued to do so. North Middlesex filed for hearing in hopes that the BSEA would confirm that its IEP provided FAPE. Hearing Officer Amy Reichbach considered the district’s claim in North Middlesex Regional School District and Martin, BSEA #2003661, 26 MSER 42 (Reichbach, January 29, 2020).

Although Martin had been homeschooled throughout his entire educational career, North Middlesex evaluated him and found him eligible for special education in 2014 due to a reading disability. A North Middlesex teacher began providing Martin with one‑to‑one Orton‑Gillingham reading services, though these services were not delivered pursuant to an IEP but instead as the result of a meeting held outside the Team process. North Middlesex subsequently performed Martin’s three‑year re‑evaluation in 2017 and proposed a partial inclusion program at North Middlesex Regional High School. After additional testing, a number of meetings, and a few iterations of the IEP, the IEP at issue in the hearing included the following:

A Grid: Consultation (1×15 minutes per 8‑day cycle)

B Grid: Academic assistance (5×60 minutes per cycle); Math (5×60 minutes per cycle)

C Grid: Reading (5×60 minutes per cycle); ELA (5×60 minutes per cycle); OT (1×60 minutes per cycle)

The proposed reading services would be delivered by a special education teacher with training (but not certification) in Orton‑Gillingham, and would involve multiple components including phonics, decoding, comprehension, vocabulary, research & writing, and project‑based learning. There were five other students in the class, and Martin would presumably be the sixth. The IEP proposed three reading benchmarks, all targeting reading comprehension. Though a district‑funded evaluator recommended Orton‑Gillingham, North Middlesex did not change the proposal given the Team’s belief that the more comprehensive program proposed in the IEP would be better for Martin since it would expose him to different teaching styles and since he had acquired many of the basic reading skills for which Orton‑Gillingham tutoring had previously been provided. At a subsequent Team meeting, the evaluator adjusted her recommendation to align with the district’s proposal.

Hearing Officer Amy Reichbach noted that although North Middlesex had filed for hearing, the burden of proving that North Middlesex’s IEP was inadequate lay with the parents since they were the ones challenging the appropriateness of the IEP. Since the parents did not participate in the hearing, submit any documents, or present any witnesses, Hearing Officer Reichbach concluded that the parents did not meet their burden of proof and that the proposed IEP was generally appropriate. However, Hearing Officer Reichbach did order North Middlesex to rewrite one of Martin’s reading goals, which she found vague and non‑measurable.

The intersection between homeschooled students and the services to which they are entitled pursuant to an IEP is a thorny one, and beyond the scope of this commentary. However, to mount a challenge to a district’s IEP, the parents in any case need to present credible expert testimony that the IEP is inadequate for the student. This burden is doubly difficult when the student has never attended the proposed program. Although it may very well be that the IEP was inadequate and that the student really did require a different constellation of reading supports, the parents presented no testimony to that effect.

PARENTS LOSE AT AN OPEN HEARING REGARDING COMPENSATORY SERVICES

Medford Public Schools, BSEA #2002451, 26 MSER 29 (Figueroa, January 27, 2020), concerned compensatory services. Medford had proposed, and the parents had accepted, an IEP calling for 4×45 minutes per week of Wilson reading instruction. However, the student’s schedule provided only a 35‑minute block for Wilson, creating a ten‑minute discrepancy. The parents filed a complaint with PRS. PRS issued a Letter of Finding, directing Medford to draft a compensatory service plan. Upon receiving the Letter of Finding, Medford noted that the 35‑minute block in the student’s schedule was a typographical error and that he was, in fact, receiving the full 45 minutes to which he was entitled. However, Medford did not appeal the PRS finding and instead offered the parents 24 hours of Wilson reading instruction delivered in school by a certified instructor, or $33 per hour for 24 hours towards services that the parents provided privately. The district subsequently increased their offer to $50 per hour, but the parents rejected both offers and instead filed a hearing request.

In their hearing request, the parents alleged that Medford had failed to implement the Wilson reading program with fidelity, that this denied the student a FAPE, and that the only acceptable remedy was to restart the program from the beginning. Parents therefore argued that the student was entitled to 111 hours of reading services delivered by their private reading tutor, at $100 per hour. Parents further sought reimbursement for transportation to the private tutoring sessions.

The hearing in this matter was an Open Hearing pursuant to a ruling located at 26 MSER 40. Effectively, this meant that the public was invited to the hearing and, indeed, the list of those present for all or part of the hearing includes a number of individuals who would not normally be in attendance at a hearing.

During the hearing, the both the Wilson teacher and the student’s classroom teacher testified (and their own schedules confirmed) that the student received the full 45 minutes of tutoring. Though the student did not complete the entire Wilson reading program with the reading tutor, she testified that she delivered the instruction with fidelity. The student’s scores on the Wilson end of the year assessment showed that he had made significant progress in both reading and spelling. Though the parents (proceeding pro se) alleged at hearing that any progress the student had made was due only to his private tutoring, the private reading tutor herself conceded at hearing that the Wilson reading program that the student received through Medford may have contributed to the student’s progress.

Hearing Officer Rosa Figueroa found that Medford had provided the student with Wilson reading instruction as outlined in the IEP (4×45 minutes per week), and that the PRS finding ordering Medford to compensate the student for the missed ten minutes per session was issued in error, without consideration of the teacher’s schedules or testimony. Though the parents had “insisted” that Hearing Officer Figueroa was required to accept the PRS finding and award the student the relief requested, despite the “irrefutable weight of the credible evidence and facts,” Hearing Officer Figueroa refused to do so. 26 MSER at 37. She further noted that the parents’ insistence that she blindly follow the PRS ruling meant that the parents lacked the “clean hands” necessary to access an equitable remedy. Id. at 39, stating that “Parents’ theory persuasively debunked by the weight of the credible evidence leaves Parents no other recourse through this forum.” Id. However, PRS findings are not reviewable by the BSEA (and vice versa) and so Hearing Officer Figueroa’s decision did not relieve Medford of its obligation pursuant to the Letter of Finding from PRS to propose a compensatory services plan to the parents (and, if needed, to seek review of that plan by PRS).

Hearing Officer Rosa Figueroa’s discussion of the legal standards surrounding compensatory services will be of use to schools, parents, and advocates during upcoming discussions regarding compensatory services after statewide school closures in the spring of 2020. She reminds us that appropriate compensatory services “will match the quantity of services improperly withheld throughout [the relevant] time period, unless the evidence shows that the child requires more or less education to be placed in the position he or she would have occupied absent the school district’s deficiencies.” 26 MSER at 36 (citing A.W. ex rel. H.W. and A.W. v. Middletown Area School District, 68 IDELR 247 (M.D. Pa., October 26, 2016)). In Reid ex rel. Reid v. District of Columbia, 401 F.3d 516 (D.C. Cir. 2005), the court specifically rejected a “cookie‑cutter” approach and stated that the award of compensatory services must be reasonably calculated to provide the educational benefits that would have likely resulted from the special education services the school district was responsible to provide the student in the first place. The Court went even further, stating that compensatory services must “do more” than ordinary IEP services. Id. at 37. As school districts and parents begin to consider compensatory education questions in the fall of 2020, all parties should keep the legal framework in mind to ensure that students get what they need.

REMOVAL TO 45‑DAY INTERIM ALTERNATIVE EDUCATIONAL SETTING ALLOWED

The student in Quincy Public Schools, BSEA #2005974, 26 MSER 50 (Putney‑Yaceshyn, January 31, 2020), was a third grader who had been diagnosed with ADHD, Oppositional Defiant Disorder, and unspecified Depressive Disorder. He attended the Quest Program at the South Shore Collaborative before transitioning to the STARS Program, a social‑emotional program at Parker Elementary School in Quincy, in April 2019. Though the student made good progress in his first few months in the STARS program, he struggled behaviorally when he entered the third grade in the fall of 2019. The student engaged in a number of incidents during October 2019 that included property destruction, bolting from the classroom, dangerous climbing behaviors, and classroom disruptions. Quincy suspended the student and convened an emergency Team meeting. The district proposed placement in a private day school but the parents refused, and instead requested, inter alia, that a 1:1 paraprofessional support student, that the district complete a functional behavior assessment (FBA), and that the student be restrained if he was in danger of hurting himself or others. Quincy proposed to complete the FBA, but the parents did not consent.

After the student came back from his suspension, he continued having behavioral difficulties in November and December 2019. The Team reconvened and Quincy proposed increased consultation between Team members, 1:1 services with the school psychologist, and training and support from the BCBA for the student’s 1:1 paraprofessional. Still, the student continued disrupting the class, refusing to complete tasks, throwing and destroying classroom materials (including computers), threatening staff, and pulling the fire alarm. The Team convened after the winter break to discuss recent behavioral incidents, conduct a manifestation determination, and discuss possible suspension. The Team determined that the student’s behavior was a manifestation of his disability and did not suspend the student, but again proposed placement in an out‑of‑district program and offered additional services while the placement was being finalized. The parents allowed the district to send only redacted packets out to potential placements.

Quincy asked that the Hearing Officer order a change of placement to an interim alternative educational setting for 45 school days, pursuant to 20 USC §1415(k)(3)(B)(ii)(II), which allows a hearing officer to make such an order after determining that maintaining the current placement is substantially likely to result in injury to the student or others.

At the hearing, the student’s special education teacher testified that the student was disruptive every day, that she had modified the classroom environment in light of student’s destructive behaviors, that other students needed to be evacuated at least five times given the student’s behaviors, and that his behaviors had escalated over the course of the year. At the time of the hearing, staff had resorted to allowing the student to draw or color due to the severity of his behaviors.

Hearing Officer Catherine Putney‑Yaceshyn found that Quincy had met its burden of proving that maintaining the student’s placement in the STARS program was likely to result in injury. She found the testimony from Quincy’s witnesses that they had used all of their available resources to be credible, and that the student continued to struggle behaviorally, including engaging in very dangerous behaviors. The parents did not testify at the hearing or submit any evidence regarding ways that Quincy could keep the student safe in his current placement, and Hearing Officer Putney‑Yaceshyn noted that the parents’ only additional suggestion—to restrain the student—was not in keeping with best educational practices, nor with state regulations. Therefore, the Hearing Officer allowed Quincy to place the student in a therapeutic day school for 45 school days.

While it does indeed sound as though this student was not making effective progress in the STARS program, and the parents’ lack of participation in this case clearly hurt their cause, the fact remains that parents who are committed to their child’s attendance in the public schools, and whose district has decided that such attendance is no longer feasible, have a very steep road ahead of them. Without their own witnesses, data, and a clear plan for what the district could do differently, parents will lose nearly every time.

FAILURE TO IMPLEMENT AN IEP IS NOT “MATERIAL”

The Quincy Public Schools was involved in a second hearing this quarter, Quincy Public Schools and Nelson, BSEA #2002950, 26 MSER 65 (Reichbach, February 28, 2020). The student in this case, “Nelson,” was a twelve‑year‑old student with ADHD, and learning disability, and a communication disorder. When he transitioned to Quincy in September 2018, Nelson’s father shared that Nelson had experienced bullying and sexual trauma and explained that Nelson needed to be watched closely. The Team did recognize this need for monitoring in PLEP‑A of Nelson’s IEP, which stated that Nelson’s “social interaction skills and decision making are impacted by his need to seek attention, inability to recognize personal space, requires him to be carefully and closely monitored throughout the school day (sic).” Goals targeted reading, writing, math, and communication, and services included academics and speech. Nelson’s IEP included transportation to and from school each day, as well as in connection with certain school‑sponsored events, partly as an accommodation for his father’s vision impairment.

The parent filed for hearing alleging that Quincy had failed to implement his son’s IEP on at least two occasions. On one occasion, students were in a computer lab and the only adult present was walking between the computer lab and the classroom next door, leaving students unsupervised at times. Nelson and a female student touched one another, potentially in a sexual way. The teacher reentered the room, directed the students to stop the touching, and both sets of parents and the principal were informed. This occurred after the father reported to the school that the female student was sending Nelson text messages asking him to touch her in a sexual way. At a series of meetings to discuss the touching incident, the district discussed safeguards they had put in place to prevent a reoccurrence, including assurance that Nelson would not be left alone again. Quincy did not write up a formal report, and did not file a 51A.

Subsequently, Nelson was left alone before an evening chorus concert at Central Middle School, when the van dropped him off a few minutes early. After the concert, the van came back to the school, but did not pick Nelson up and instead left without notifying the parents. The music teacher testified that, after the concert, Nelson told her that he saw the van and asked if he could leave. She granted him permission and did not see him again, though she reportedly remained on the school grounds for another hour and stated that she assumed Nelson would have come to find her if there was a problem with the van.

The parents filed a report of neglect against the district in connection with the two incidents, and stopped sending Nelson to school for a period of time given concerns about his safety. Though the DCF social worker agreed that the school had made promises it did not keep and that the supervision from the school and transportation company was inadequate, the incidents did not rise to the level of neglect. The parents then filed a complaint with DESE regarding both incidents. DESE stated that the touching incident was outside its authority but requested a response from Quincy regarding the van incident. Quincy responded by offering the services of a paraprofessional assigned to Nelson at future after school or evening events. DESE issued a Closure Letter finding that Quincy had not implemented Nelson’s IEP because he had not been “carefully and closely monitored” after the chorus concert. DESE endorsed Quincy’s proposed corrective action with respect to after school activities, and encouraged the parties to work together to determine how best to “carefully and closely monitor” Nelson during the school day.

While the U.S. Court for the District of Massachusetts has outlined a test for determining whether an IEP has been implemented, Hearing Officer Amy Reichbach turned to other First Circuit courts for guidance given the difficulty of applying the Massachusetts standard. One standard came from the U.S. District Court for the District of Puerto Rico, in Colón‑Vazquez, v. Department of Education, 46 F. Supp. 3d 132 (D. P.R. 2014). In this case, the court stated that the question was whether the non‑implemented aspects of the IEP were “substantial or significant,” or whether the lack of implementation was a “material failure,” with “more than a minor discrepancy between the services a school provides¼and the services required by the child’s IEP.” Importantly, this standard did not require that the child “suffer demonstrable educational harm.” 26 MSER at 71.

Though Hearing Officer Reichbach agreed with the parents that Quincy had failed to “carefully and closely monitor” Nelson, because PLEP‑A was the only place in Nelson’s IEP that noted the need for careful and close monitoring, and no goals or services had been affected, Hearing Officer Reichbach found that Quincy’s failure to carefully and closely monitor Nelson did not constitute a material failure to implement his IEP.

It may be that Quincy’s failure to implement Nelson’s IEP was not “material,” but it is hard to fault the parents for their concerns. The parents had shared Nelson’s fragility with the principal, and the IEP noted Nelson’s need for close monitoring. The parents had alerted the district to texts of a sexual nature coming from a classmate, and yet that very classmate participated in a touching incident while a single teacher was in and out of the classroom. Then, after many promises of careful monitoring, Nelson was left alone both before and after a school‑sponsored activity. It is not surprising that Quincy’s offers to do better were unpersuasive to the parents, particularly when both DCF and DESE echoed the parents’ concerns about the lapses in supervision. Unfortunately for Nelson, however, this case serves as a reminder that the goals and services form the backbone of an IEP and anything not mentioned there may fall by the wayside, possibly without consequence.

AVAILABILITY OF OSD CIRCUIT BREAKER FUNDS FOR UNAPPROVED AFTER‑SCHOOL PROGRAM

In Swampscott Public Schools and Massachusetts Department of Elementary and Secondary Education, BSEA #2004165, 26 MSER 58 (Oliver, February 24, 2020), the district (Swampscott) had placed the student in question at Hopeful Journeys, an approved special education day school. The Team concluded that the student required extended day services to receive a FAPE. However, the extended day program at Hopeful Journeys was not DESE‑approved and Hopeful Journeys refused to apply for DESE approval. A February 2019 DESE advisory indicated that public funds could not be spent on unapproved programs, so Swampscott brought the case to the BSEA. The issues in dispute included (1) whether the 2019 DESE advisory was applicable; (2) whether Swampscott was entitled to circuit breaker reimbursement for the extended day program at Hopeful Journeys; and (3) whether the BSEA should approve Swampscott’s placement of the student in Hopeful Journeys’ extended day program despite its lack of DESE approval.

Hearing Officer Ray Oliver found that the DESE advisory did not apply. The advisory stated that districts could receive circuit breaker reimbursement for unapproved programs if districts submitted “Form 28M/3,” also called a “Notification of Intent to Seek Approval for Individual Student Program” to DESE’s Office of Approved Special Education Schools (OASES), and OASES approved a price for the program. However, Hopeful Journeys refused to seek approval for the extended day program. The advisory further stated that districts who had students in Operational Services Division (“OSD”)‑approved programs who were receiving individual services (e.g., aides, therapists) from the same approved school could receive circuit breaker reimbursement for those services after filing an individual price authorization. However, the extended day program at Hopeful Journeys was not an OSD‑approved program. Thus, Hearing Officer Oliver found that the DESE advisory did not apply. Because the OSD, which handles circuit breaker reimbursements, could not approve a placement that was not DESE‑approved, the services provided in the extended day program were not subject to OSD circuit breaker reimbursement.

Hearing Officer Oliver refused to substitute the BSEA’s approval (so that Swampscott could get OSD circuit breaker reimbursement) for DESE’s approval pursuant to the Form 28M/3 process. He stated that to do so would “effectively open the door to an end run around appropriate DESE regulation of private special education schools and programs, enabling approval of programs and/or services that fail to meet DESE’s educational standard.” 26 MSER at 60. The Hearing Officer noted that DESE had agreed to provide DESE circuit breaker reimbursement to Swampscott. Despite this financial assistance, Swampscott objected given that DESE reimbursement was lower and required more paperwork than OSD reimbursement, garnering little sympathy from Hearing Officer Oliver.

This decision confirms that districts are in fact able to fund unapproved programs, which many districts questioned in the wake of the February 2019 advisory. However, if the unapproved program refuses to participate in the 28M/3 process, or if DESE does not approve a price for the program, the district will be unable to receive OSD circuit breaker reimbursement. Neither parents nor districts should mistake this lack of OSD circuit breaker reimbursement for a prohibition on funding unapproved programs, however. If either a Team decides, or a party at a hearing proves, that an unapproved program provides a student with FAPE, the district must fund that program notwithstanding the unavailability of OSD circuit breaker reimbursement.

JOINDER RULINGS

Four of the five rulings this quarter concerned motions to join state agencies or public school districts. Rule I.J of the BSEA Hearing Rules allows a Hearing Officer to join a person or entity as a party:

¼where complete relief cannot be granted among those who are already parties, or if the party being joined has an interest relating to the subject matter of the case and is so situated that the case cannot be disposed of in its absence. Factors in determination of joinder are: the risks of prejudice to the present parties in the absence of the proposed party; the range of alternatives for fashioning relief; the inadequacy of a judgment entered in the proposed party’s absence; and the existence of an alternative forum to resolve the issues.

Two of the joinder rulings were in one case, Winchendon Public Schools, BSEA #2004507, 26 MSER 16, 56 (Berman, January 13 & February 4, 2020). The student, a fifteen‑year‑old who was eligible for special education services, had attended the Boston Public Schools until she was taken into DCF custody in January 2019. DCF subsequently moved the student to a group home in Winchendon and enrolled her in the Winchendon Public Schools. DESE determined that Winchendon was programmatically responsible and Boston remained fiscally responsible for the student’s education, pursuant to 603 CMR 28.10(5)(b). Winchendon proposed a series of IEPs/amendments, which the student’s educational decision‑maker accepted, throughout the spring. However, the student was out of school for most of the period from January through June 2019, received tutoring from Winchendon for some period of time between June 2019 and September 2019, and received no educational services whatsoever between September 2019 until she started an extended evaluation at a collaborative in November 2019.

Winchendon filed a motion seeking to join Boston, given that Boston had fiscal responsibility for the student’s program. Boston did not dispute its fiscal responsibility but opposed the joinder motion. In a ruling found at 26 MSER 16, Hearing Officer Sara Berman granted Winchendon’s motion to join Boston because the Hearing Officer would not be able to bind Boston to comply with any order unless the district was part of the case, and also due to the risk of prejudice to Boston, which could find itself obligated to fund compensatory services without having had the opportunity to dispute either liability or the amount of services owed. Further, joinder would increase the efficiency of the dispute resolution process.

The student also filed a motion to join DCF, disputing educational decisions that the agency made in its role as student’s custodian. No party opposed the joinder motion. In a ruling found at 26 MSER 56, Hearing Officer Sara Berman granted the student’s motion to join DCF, citing the student’s status as a “client” of DCF, and the potential that DCF might share liability for any compensatory services ordered.

In Brookline Public Schools, BSEA #2005734, 26 MSER 60 (Figueroa, February 25, 2020), the Boston Public Schools again unsuccessfully argued against a joinder motion. Parents, who were divorced and shared custody, lived in Boston and Brookline. They filed for hearing against Brookline, and Brookline subsequently filed a motion to join Boston given that the student lived with both parents during the week. Boston opposed the joinder motion, asserting that the FAPE dispute involved the parents and Brookline only and that Brookline was solely responsible for both programmatic and fiscal implementation of the student’s IEP. In the alternative, Boston stated that it would be prepared to fund and administer any special education services deemed appropriate by the BSEA and that it was therefore not a necessary party to the action. Again, however, Boston Public Schools was unsuccessful in staying out of the litigation. Hearing Officer Rosa Figueroa found that Boston was a necessary party because 603 CMR 28.10(2)(a)(2) calls for two school districts to share financial responsibility for an out‑of‑district placement for a student who resides with both parents in separate districts during the school year. Again, the risk that Boston could be held partially financially responsible for the student’s placement meant that the district was a necessary party to the action. Hearing Officer Figueroa did note that Boston was free to limit its participation in the hearing if it continued to believe that its participation was unnecessary.

Finally, in Northampton Public Schools, BSEA #2006485, 26 MSER 73 (Figueroa, March 30, 2020), the parent sought a residential placement for the student, a twenty‑year‑old young woman with a complex profile that included Autism, brain injury, developmental delay, and significant mental health symptoms. The district filed motions to join both DDS and DMH. The agencies and school district seemed to agree that Northampton would be solely responsible for the student’s residential placement if the Hearing Officer held that the student required residential placement for educational reasons, and that DDS could not be ordered to fund the residential portion of the student’s education pursuant to its own regulations. The question was whether DDS could be ordered to fund additional (non‑residential) services and whether DMH could be ordered to fund additional services (including residential placement).

Ultimately, Hearing Officer Figueroa denied the district’s motion to join DMH because the student was ineligible for DMH services due to non‑qualifying diagnoses (Autism and a Neurocognitive Disorder) and the parent’s appeal period had passed. Therefore, the Hearing Officer would not have been able to order DMH to offer services of any kind to the student. In contrast, Hearing Officer Rosa Figueroa granted the district’s motion to join DDS. The student was a client of DDS and had been receiving services for a number of years. The Hearing Officer agreed with Northampton that it was possible for her to order DDS to provide non‑residential services to the student in addition to a day program if she found that the student required such services for non‑educational reasons.

In joinder cases such as Northampton, districts often look for state agencies to share the burden of a residential placement. When a hearing officer declines to join an agency like DMH or DCF, whose regulations permit cost‑sharing, this often serves as a catalyst to settle the case since the district knows that it will be solely responsible if the hearing officer believes the student requires residential placement. However, when the hearing officer does join such an agency to the case, this can also serve as a catalyst for settlement, since both agency and district sometimes prefer to share the cost of a residential placement rather than go to hearing. Despite the benefits that sometimes flow to parents and students when agencies are involved in a case for residential placement, there are associated risks as well. First, if parents are arguing that the student requires residential placement for educational reasons, only the school district is responsible for such relief. Second, districts are bound by special education law—stay put, progress reporting, etc.—while agencies are not, and are instead governed by their own regulations, policies, and protocols. This creates both strategic and practical issues with a cost‑shared placement, usually when an agency wishes to terminate its part of the cost share after a relatively short period of time.

SPRINGFIELD LOSES MOTION TO DISMISS REGARDING ALLEGED DISCRIMINATION PREVENTING PARENT & STUDENT ACCESS TO IEP MEETINGS

The final ruling of the quarter, in Springfield Public Schools and Ollie, BSEA #2004776, 26 MSER 62 (Reichbach, February 26, 2020), involved a motion to dismiss that the Springfield Public Schools filed against a pro se parent. In her complaint, the parent alleged both IDEA‑related claims and other claims, including allegations that the district had cancelled IEP meetings, included their attorney in meetings without notice, taunted and humiliated the student, retaliated against the parent for participating in protected activities, and improperly disclosed personally identifiable information protected by HIPAA and FERPA. The district filed its motion to dismiss, arguing that the non‑IDEA claims were outside the BSEA’s jurisdiction.

As Hearing Officer Reichbach noted, a Hearing Officer may allow a motion to dismiss if the party requesting the appeal fails to state a claim on which relief can be granted. 26 MSER at 63 (citing Standard Adjudicatory Rules of Practice and Procedure, 801 CMR 1.01(7)(g)(3); BSEA Hearing Rules for Special Education Appeals, Rule XVIIB). To survive a motion to dismiss, a party must state factual allegations that, if true, and even if imperfectly pled, plausibly suggest an entitlement to relief. Considering the BSEA’s jurisdiction over claims concerning the “eligibility, evaluation, placement, IEP, provision of special education in accordance with state and federal law, or procedural protections of state and federal law for students with disabilities,” see 603 CMR 28.08(3)(a), as well as over “IDEA‑based” claims, Hearing Officer Amy Reichbach granted the district’s motion in part and denied it in part. To the extent that the parent’s claims of discrimination, retaliation, threat, and abuse of power had impeded her ability (and/or the student’s ability) to participate in IEP meetings, the Hearing Officer found those claims to be IDEA‑based and denied Springfield’s motion to dismiss. To the extent that the parent had alleged that the district’s actions impeded her ability to exercise other protected rights, the Hearing Officer dismissed those claims as outside the BSEA’s jurisdiction. Finally, the Hearing Officer refused to deny certain remedies that the parent had requested, instead noting that remedies for a prevailing party would be considered at hearing.

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