Commentary on Massachusetts Special Education Decisions: 2nd Quarter 2020, by Alicia M.P. Warren:

November 25, 2020


The second quarter of 2020 was relatively quiet for the BSEA, bringing a total of one decision and thirteen orders and rulings. Despite the overall slow pace this quarter, which coincided with the Commonwealth’s shutdown due to the coronavirus pandemic, two cases, Springfield Public Schools and Ollie and Nashoba Regional School District and Preston were hotly litigated. These cases, both assigned to Hearing Officer Amy Reichbach, constituted nearly half of the total rulings and considered a range of discovery issues and numerous requests for postponement. The remainder of the rulings contemplated a spattering of discrete issues, including, among others, the adequacy of notice of unilateral placement (Westwood Public Schools), legal obligations for educating students with disabilities who are either homeless (Sudbury Public Schools) or in state custody (Boston Public Schools and the Department for Elementary and Secondary Education), and parental consent (Berkshire Hills Regional School District and Tyler). The parents received many favorable rulings, the majority of which are discussed here. In the one decision following a hearing this quarter, Springfield Public Schools and Don, the parents fully prevailed.

Parent proved in‑district language learning disability program was inappropriate for student with Autism Spectrum Disorder

The Individuals with Disabilities Education Act (“IDEA”) entitles every student with a disability to a “free appropriate public education” (“FAPE”). Springfield Public Schools and Don, BSEA #1907864, 26 MSER 78 (Oliver, 4/15/20) unpacked some of the reasons that a program, such as the one proposed by Springfield for Don, may be inadequate. The case involved Don, a seventh‑grade student with primary diagnoses of Autism Spectrum Disorder (“ASD”) and emotional disabilities. Don also had language‑based learning disabilities, but they were secondary to his other diagnoses.

For sixth grade, Don participated in Springfield’s Language Learning Disability (“LLD”) program, following an extended evaluation in that same program. The LLD program proposal, as amended upon the conclusion of Don’s extended evaluation, contained a range of academic services; speech‑language, occupational, and physical therapies; a 15‑minute Autism consultation; and a 1:1 aide to address social and safety concerns. Students in the LLD program, including Don, were mainstreamed for lunch and gym within a school population of about 900 students. Based on a review of peer IEPs and testimony from LLD staff, none of the other students in the LLD program were diagnosed with ASD or received any ASD‑related supports, such as Applied Behavior Analysis (“ABA”).

Immediately prior to and during the extended evaluation period, Don’s independent psychoeducational evaluator, Dr. Marilyn Engelman, conducted an evaluation of Don and an observation of the LLD program. While Dr. Engelman recommended Don’s placement in a highly structured language‑based program, she explained that the program must provide a comprehensive approach to address Don’s complex disabilities, including weaving ABA and a social skills curriculum into the fabric of Don’s school day, and must also provide a cohort of similar peers. Don’s neurodevelopmental pediatrician, Dr. Lawrence Kaplan, also evaluated Don. Dr. Kaplan confirmed Don’s ASD diagnosis and recommended his placement in a small educational setting that would minimize sensory input. Don’s IEP Team failed to reconvene to review Dr. Kaplan’s report.

After approximately six unsuccessful months in the LLD program, during which Don was largely non‑verbal, routinely did not eat lunch, and vomited both in the cafeteria and gym class, the parent unilaterally placed Don at Summit Academy (“Summit”). In contrast to the LLD program, Summit’s program was designed for students with ASD, many of which also had learning disabilities. Summit utilized ABA and taught social skills throughout the school day, and staff were qualified and highly trained in those methodologies. Don adjusted well at Summit, making both academic and social progress. He participated in class, spoke to adults and peers, and established friendships. Over the course of Don’s two years at Summit, Dr. Engelman, in addition to her initial evaluation and program observation, re‑evaluated Don, observed the Summit program twice, and observed the LLD program once. Each time, Dr. Engelman reiterated that the LLD program was not appropriate for Don.

Given Dr. Engleman’s extensive involvement with Don, the Hearing Officer placed substantial weight on her testimony, evaluations, and observations. Of note, the Hearing Officer emphasized that Dr. Engelman’s opinions were not gleaned from a single evaluation in a clinical setting, but rather years of experience with Don in both clinical and educational settings. The Hearing Officer also credited the opinions of Dr. Kaplan and Springfield’s own school psychologist, who had stressed Don’s need for intensive and integrated social supports. Based on peer IEPs produced by Springfield during discovery and introduced at hearing, the Hearing Officer also found the LLD program lacked an appropriate peer group for Don. None of the other students in the LLD program had ASD or struggled with any of the attendant challenges that characterized Don’s profile, including social communication weaknesses.

The Hearing Officer was not distracted by Springfield’s two written progress reports suggesting that Don had made progress within the LLD program. Additionally, the Hearing Officer easily disposed of the argument that the LLD program constituted the least restrictive environment (“LRE”) for Don, as Don derived little, if any, benefit from his mainstream lunch and gym periods. In fact, the Hearing Officer took his analysis one step further, reasoning that even if the inclusion opportunities had been beneficial to Don, they would not have rehabilitated an otherwise inappropriate program—underscoring the important principle that “the provision of FAPE cannot be compromised in the interest of LRE.” 26 MSER at 83.

The Hearing Officer deemed Springfield’s proposed IEPs placing Don in the LLD program inappropriate, instead finding Summit appropriate. As a result, the parent fully prevailed. Springfield was ordered to reimburse the parent for her tuition and transportation costs for Don’s placement at Summit, as well as to fund Don’s placement at Summit prospectively and provide transportation to and from Summit. We also note that the parent is also entitled to her attorneys’ fees, which will need to be obtained through a separate action.

In our view, the Hearing Officer reached the correct conclusion at every turn. While this case may have appeared to be an “easy win,” it is a clear lesson in patience and proof. The parent, conceivably in conjunction with her counsel, methodically built her case over a period of years, garnering expert support and, eventually, gathering key documents and information from the district through discovery. Without the strategic series of evaluations and observations, which temper the pace of otherwise very urgent timetables, it is likely that the parent would not have had all of the evidence that she needed to so readily overcome her steep burden of proof.

Pre‑trial motions: Part One

This quarter, Springfield battled before the BSEA in a number of actions. In another case, Springfield Public Schools and Ollie, BSEA #2007894, 26 MSER 76, 102, 106, 110 (Reichbach, 4/10, 5/28, 6/11, 6/11/20), the Hearing Officer considered numerous motions, filed by both the pro se parent and the district, in four separate rulings.

In the first ruling in this case this quarter, 26 MSER 76, the Hearing Officer considered Springfield’s Motion to Postpone the hearing dates due to school closures in connection with COVID‑19, which the parent opposed. Springfield asserted that it would not be able to prepare its witnesses adequately or fully engage in discovery, and the district would not agree to hold the hearing virtually. The Hearing Officer was not persuaded by Springfield’s apparent inability to prepare for hearing; nevertheless, the Hearing Officer granted the postponement request. Citing BSEA Hearing Rules III and IX, which pertain to postponements and the conduct of hearings, respectively, the Hearing Officer ultimately concluded that it would be difficult, if not impossible, to maintain order in a virtual hearing, given the strained relationship between the parties and personal attacks levied by the parent toward Springfield personnel, which the Hearing Officer had witnessed firsthand.

Perhaps illustrative of the parties’ strained relationship, the second ruling in Springfield and Ollie this quarter, 26 MSER 102, addressed a variety of motions, one filed by the parent to disqualify Springfield’s counsel for allegedly withholding discovery responses and another filed by Springfield to prohibit the parent from sharing confidential information about the case in a public forum. The Hearing Officer denied both motions. As to disqualification, a drastic measure justified by exceptional circumstances, the Hearing Officer credited Springfield’s counsel explanation that the district’s discovery responses had been slightly delayed due to the challenges presented by COVID‑19. In consideration of Springfield’s request to prohibit the parent from sharing confidential information about the case, the Hearing Officer concluded that although BSEA proceedings are confidential, a claim that the parent has shared confidences falls outside the scope of the BSEA’s jurisdiction, which generally pertains to the adjudication of special education disputes only.

In the third ruling in this case this quarter, 26 MSER 106, the Hearing Officer addressed additional discovery motions. On the parent’s Request for a Protective Order, in which the parent argued that she was entitled to the protections afforded by the work product doctrine, the Hearing Officer provided an encouraging analysis. Pursuant to Mass. R. Civ. P. 26(b)(3) and its federal counterpart, documents and other tangible things prepared in anticipation of litigation are generally protected from disclosure. Citing back to her decision in another case, Dorian and Waltham Schools, BSEA #1702306, 23 MSER 187 (Reichbach, 7/20/17), in which the BSEA extended work product protection to the records of lay advocates for the first time, the Hearing Officer reasoned that the work product doctrine applies to attorneys and non‑attorneys alike. Thus, the Hearing Officer in Springfieldacknowledged that the pro se parent may very well invoke the work product doctrine to protect from disclosure the documents and things that she had prepared, or that had been prepared at her direction, in anticipation of litigation. Nevertheless, the parent failed to demonstrate why she was entitled to work product protection in this instance. Those practitioners and advocates who had closely followed Dorian may recall that in a subsequent case, Duxbury Public Schools, BSEA #1803977, 24 MSER 23 (Figueroa, 3/1/18), another Hearing Officer declined to adopt Dorian’s analysis and denied work product status to lay advocate records. While we agree with the more expansive view of the work product doctrine announced in Dorian and articulated in Springfieldand continue to hope that other hearing officers will recognize the importance of extending work product protection to non‑attorney records, we caution that this line of cases is not necessarily binding in future cases.

In the final motion of the quarter in Springfield and Ollie, 26 MSER 110, the Hearing Officer considered a second Motion to Postpone, which, this time, the Hearing Officer granted in part. Due to the parent’s late‑filed discovery requests, which had been the subject of one of the many previous motions in this case, the Hearing Officer reasoned that discovery would not have been completed with adequate time to prepare for hearing. The Hearing Officer granted a short postponement, but refused to indefinitely delay the hearing until proceedings could resume in person, as Springfield had urged. Commenting that the parties had demonstrated increased civility in the previous virtual motion sessions, the Hearing Officer expressed confidence that she could now maintain order in a virtual hearing.

On similar grounds, the Hearing Officer in another case this quarter, Newton Public Schools and Al, BSEA #2007208, 26 MSER 94 (Oliver, 5/7/20), denied the district’s request to indefinitely postpone the hearing as a result of COVID‑19. The Hearing Officer emphasized that despite COVID‑19, the BSEA maintains its commitment to timely and expeditiously adjudicating special education cases, consistent with federal deadlines.

Pre‑trial motions: Part two

Like Springfield and Ollie, Nashoba Regional School District and Preston, BSEA #2004002, 26 MSER 84, 95 (Reichbach, 4/22, 5/8/20) was also a contentious matter during this quarter. Hearing Officer Reichbach considered another litany of motions, this time issuing two separate rulings. Consistent with the trend, the district moved to postpone the hearing following the school shutdown, which had been previously delayed by four months. 26 MSER 84. The Hearing Officer denied the motion, reasoning that further delay would prejudice the student, Preston, since he could not step down from his current program, Three Rivers, until another program was identified and secured. Litigation ensued.

In preparation for the hearing, Nashoba subpoenaed Three Rivers for records concerning Preston, as well as five Three Rivers employees to appear and testify at the hearing. Three Rivers moved to vacate and/or quash four of the individual subpoenas and to modify the subpoena duces tecum. Nashoba again moved to postpone the hearing. These three motions were the subject of the Hearing Officer’s second ruling in this case this quarter. 26 MSER 95.

Three Rivers was largely successful on its motions. The Hearing Officer quashed the subpoenas to four of the Three Rivers employees, primarily due to the fact that Preston’s individual and family therapist at Three Rivers, who had firsthand knowledge of him, was slated to testify and could provide any of the information that Nashoba was seeking from the other subpoenaed individuals.

As for the subpoena duces tecum, the Hearing Officer granted Three Rivers’ motion to modify in part, after a considered analysis. The subpoena duces tecum sought broad classes of information about Preston including, but not limited to, any and all records relating to Preston’s treatment, as well as the notes of his psychotherapist and clinician. Contending that many of the records that Nashoba sought were irrelevant and/or confidential, particularly pursuant to the psychotherapy privilege embodied in 45 CFR §164.524(a), Three Rivers instead proposed that it provide copies of quarterly therapy and milieu summaries as well as treatment plans. Reasoning that the potential damage to Preston’s therapeutic relationship outweighed Nashoba’s need for notes from Preston’s psychotherapy sessions, the quarterly summaries of which Three Rivers was willing to provide, the Hearing Officer partially quashed the subpoena. With the exception of the psychotherapy notes and the documents that Three Rivers intended to produce to Nashoba, the parties agreed to submit the remainder of the contested documents to the Hearing Officer for an in‑camera review. Given the delays associated with receiving and reviewing the Three Rivers records, the Hearing Officer granted Nashoba’s second motion to postpone the hearing.

We applaud the Hearing Officer’s decision to protect psychotherapy notes related to the student, thereby preserving an often fragile yet critical relationship between a vulnerable student and his provider. This case represents a long‑awaited and welcome departure from other rulings considering the discoverability of such records, such as Dorian and Waltham Schools, BSEA #1702306, 23 MSER 187 (Reichbach, 7/20/17), which determined that once the student’s emotional health becomes an issue in a BSEA proceeding, the psychotherapist‑patient privilege is waived. It is our hope that other hearing officers, similarly considering the significant harm to the student, will also limit the disclosure of a student’s therapeutic records in the future. Yet, as with the work product doctrine (discussed above), parents and therapists must continue to be aware of the risk of disclosure.

District loses challenge to the adequacy of parents’ notice of unilateral placement

In Re: Westwood Public Schools, BSEA #2007024, 26 MSER 87 (Berman, 3/3/20) concerned a student, who, due to a significant decline in his social‑emotional and academic functioning, was unilaterally placed by his parents in an out‑of‑state wilderness program.[1] The placement process involved the involuntary removal of the student from his home by program staff, who then transported the student to the program. The parents provided written notice to Westwood of the student’s unilateral placement on the same day that it occurred, given the highly sensitive and urgent nature of the situation. At least one month prior to the placement, however, the parents notified Westwood that the student needed more intensive programming, and the district had ample opportunities to address the parents’ concerns.

In filing the instant case, the parents sought, in part, reimbursement from Westwood for all costs associated with the student’s placement in the wilderness program, as well as all costs associated with student’s subsequent placement in a residential therapeutic program. Westwood moved to dismiss the parents’ case on the basis that the parents were “procedurally barred” from proceeding because they failed to give the district ten‑days’ notice of the unilateral placement. 26 MSER 89.

The Hearing Officer ruled that Westwood misconstrued the notice statute, 20 USC § 1412(a)(10)(C)(iii)(I), which grants a hearing officer discretion to limit or deny reimbursement for the costs of a unilateral placement where, as in this case, the parents did not notify the district of the removal ten business days prior its occurrence. And like most rules, there are exceptions. Indeed, parents are statutorily exempt from the ten‑day notice rule where strict compliance therewith would likely result in emotional or physical harm to the student. Id. at § 1412(a)(10)(c)(iv)(I)(cc).

In denying Westwood’s motion, the Hearing Officer emphasized that nothing in the notice statute compelled her to dismiss the parents’ case; rather, she held that she maintained the authority to limit or reduce reimbursement, which was an equitable determination to be made following a full hearing on the merits of the case.

We agree with the Hearing Officer’s measured analysis in this case. The ten‑day notice statute is not, by any stretch, a procedural bar to parents’ claims for reimbursement. To assert as much ignores the plain language of the statute, its exceptions, and the factual complexities surrounding each placement that must be borne out during an evidentiary hearing.

The legal landscape for students who are homeless or in institutional settings

Two cases this quarter, In Re: Boston Public Schools and Department of Elementary and Secondary Education, BSEA #2006658, 26 MSER 115 (Figueroa, 6/17/20) and In Re: Sudbury Public Schools, BSEA #2005312, 26 MSER 99 (Berman, 5/28/20), addressed the legal principles at play when students reside outside the physical bounds of their districts.

Ordinarily, a school district’s responsibility to provide FAPE to a student is based on residency and enrollment. MGL c. 71B, § 3; 603 CMR 28.10(1). There are circumstances, however, that complicate the typical residency analysis, where, for example, as in Boston and DESE, the student at issue is detained in an institutional setting, or as in Sudbury, the student may be homeless.

Massachusetts regulations provide that eligible students in state institutional settings, such as the Department of Youth Services (“DYS”), continue to receive services in their IEPs to the extent possible. 603 CMR 28.06(9). In these instances, responsibility for providing a student’s special education services is shared among the Department of Elementary and Secondary Education (“DESE”) and its Special Education in Institutional Settings (“SEIS”) unit, any host agencies (such as DYS), and the school district where the student resided prior to entering the institutional setting. DESE/SEIS’s responsibility to itself provide services is dependent on the resources available. Where DESE/SEIS cannot provide a service in the first instance, it must notify the responsible school district, which is then obligated to provide the service. In Boston and DESE, the parent filed a hearing request against DESE and Boston, challenging the student’s receipt of FAPE while she had been in DYS custody. DESE moved to dismiss the parent’s claims against the agency, which the parent and Boston opposed. The Hearing Officer denied DESE’s motion, as the parent alleged facts tending to show that DESE/SEIS owed a number of obligations to the student. Whether DESE/SEIS fulfilled those obligations, however, was a question reserved for another day.

The next case, Sudbury, addressed a school district’s obligations to an eligible student who is or becomes homeless. In general, the McKinney‑Vento Act (“McKinney‑Vento”), 42 U.S.C. § 11431 et seq., portions of which are incorporated into the IDEA, requires states to ensure that school districts provide educational services to homeless students (i.e., students who “lack a fixed, regular and adequate nighttime residence,” including students who are living in motels or hotels or in substandard housing). 42 U.S.C. § 11430(a)(2), 11432(g)(3). Pursuant to state regulations, homeless students may either continue to attend the school that they were attending prior to becoming homeless (the “school of origin”) or attend school where they are temporarily residing. 603 CMR 28.10(5). The school of origin remains programmatically and fiscally responsible for a homeless student until that student enrolls in the district where he or she temporarily resides.

In Sudbury, the district moved for summary judgment on the basis that after it had filed for hearing, the student and his parents moved from Sudbury to Westford, where the family had purchased and was renovating a home. The parents invoked McKinney‑Vento, arguing that the student was, in fact, homeless because the family had been required to vacate their rental home in Sudbury for repairs, that they were unable to find alternative housing due to COVID‑19, and that without another option, they moved to their Westford home. The Westford home was under construction, had leaking plumbing, lacked a functional kitchen, and did not have a bathtub. Due to the habitability issues in the Westford home, the family temporarily relocated to a hotel, before returning back to Westford.

On summary judgment, the moving party, Sudbury, was required to show that, in the absence of genuine issues of material fact, it was entitled to judgment as a matter of law. The district failed to do so. Given the factual dispute concerning whether Westford constituted a “fixed, adequate nighttime residence” for the student within the meaning of McKinney‑Vento, the case survived.

Both Boston and DESE and Sudbury highlight some of the many rights that students with special needs possess. It is critical that one of our most vulnerable group of eligible students, those who have been uprooted from home for one reason or another, continue receive a FAPE, particularly in times of great turmoil. We agree with the hearing officers’ decisions in both of these cases.

[1] The parents in this case were represented by the commentators’ firm, Kotin, Crabtree & Strong, LLP.

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