Commentary on Massachusetts Special Education Decisions: 4th Quarter 2020, by Daniel T.S. Heffernan:
April 29, 2021
Two of the matters that went to full hearings, Springfield Public Schools and Ollie, BSEA #2007894, 26 MSER 275 (Amy Reichbach; November 10, 2020) and Marshfield Public Schools and Ruth, BSEA #2005814, 26 MSER 154 (Raymond Oliver; September 4, 2020) reinforce the adage, often espoused by Hearing Officer Ray Oliver, that litigation begets litigation whereby each of these matters was the latest in multiple filings between the parties. The hearing officers decried the “toxic” and “contentious” relationship between the parties which did not serve the Student well. In Marshfield, the toxic relationship between the parties was the reason the in-district program was untenable—but Marshfield’s proposed placement in another public school district with the in-district IEP was held to provide FAPE. The Springfield matter addressed at what point would not providing all of the services called for in an IEP constitute a “failure to implement” the IEP and result in a denial of a FAPE. The hearing officers addressed the right of parents to discover test protocols in Nashoba Regional School District and Quinelle, BSEA #2009112, 26 MSER 242 (Amy Reichbach; October 13, 2020); as well as the principal’s notes, in Malden Public Schools, BSEA #2004105, 26 MSER 308 (Sara Berman; October 5, 2020).
The issue of whether cases before the BSEA can be consolidated was thoughtfully analyzed in Acton-Boxborough Regional School District and Stewart, BSEA #2101061, 26 MSER 334 (Amy Reichbach; December 23, 2020) which reaffirmed the reluctance, but not complete opposition, to consolidation. Sara Berman gave a forceful opinion that the failure to timely and fully provide parents with school records is not an inconsequential procedural violation, but one with significant, substantive ramifications in Student v. Malden Public Schools, BSEA #2102352, 26 MSER 308 (Sara Berman; November 13, 2020). The authority of the BSEA to fashion its own remedy for an inadequate program is manifest in Student v. Whitman-Hanson Regional School District, BSEA #2007520, 26 MSER 310 (Sara Berman; November 27, 2020). Conversely, the limits of the BSEA’s authority is seen in their inability to order a private school to allow the district to observe their program in Worcester Public Schools and Ryder, BSEA #2100796, 26 MSER 324 (Amy Reichbach; December 3, 2020). Belmont Public Schools and Devereux Behavioral Health, BSEA #2103476, 26 MSER 325 (Rosa Figueroa; December 8, 2020) and Reading Public Schools, BSEA #2008819, 26 MSER 329 (Alina Kantor Nir; December 22, 2020) both explored the contours of stay-put. The family was unsuccessful in making a case for reimbursement for tuition at the Carroll School when the district had offered the Landmark School in Lincoln Public Schools, BSEA# 2007623 (Rosa Figueroa; October 20, 2020). The family of a METCO student in Bedford Public Schools, BSEA# 2006076, 26 MSER 325 (Rosa Figueroa; October 26, 2020) was unable to establish that the LRE for their child was remaining in the METCO program instead of being moved to a sub-separate Boston Public School program.
Fiscal Year 2020 BSEA Statistics
Before commenting on this quarter’s decisions, we offer an overview of the BSEA statistics for Fiscal Year 2020, relying in part on BSEA Director Reece Erlichman’s always invaluable insights into not only the essential work of the BSEA, but also into some trends regarding the subject matter of special education disputes in the Commonwealth.
Providing yet another example of the never-seen before Covid-19 effects, for the first time in the BSEA’s existence, the number of rejected IEPs actually declined.
FY20 – 9,442
FY19 – 11,979
FY18 – 11,900
FY17 – 11,400
FY16 – 10,800
While the number of hearing requests had basically stabilized over the last few years at around 500, FY20 saw a precipitous drop in the number of hearing requests.
FY 20 – 379
FY19 – 483
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. FY18 yielded the lowest number of full hearings (13) since the early days of the BSEA. The consensus is this was attributable to two factors. First, and most significantly, is the number of matters going to settlement conferences and the effectiveness of Reece Erlichman in getting those matters resolved. Second, was the use of pre-trial motions to resolve matters completely or position them for resolution. Settlement conferences were held in 68 of the cases that were filed for hearing in FY20 (as compared to 67 in FY19 cases), of which 62 were resolved the day of the settlement conference. Although the number of hearing requests filed in FY20 was over 100 fewer that FY19, the number of matters going to full hearings with written decisions was identical.
FY20 – 19
FY19 – 19
FY18 – 13
FY17 – 22
FY16 – 23
FY15 – 18
FY14 – 25
FY13 – 52
Of the 19 decisions noted above, Parents fully prevailed in 4. Parents had counsel in 3. The School Districts fully prevailed in 10 and of those, Parents had counsel in 3, an advocate in 1, and were pro se in 6. 4 cases yielded mixed relief, with Parents having counsel in 2, and pro se in 2. 1 decision involved an LEA assignment.
The BSEA conducted 77 facilitated IEP Team meetings in FY20 (with 8 un-met requests), a decrease from the 114 conducted during the previous year.
There were 573 mediations conducted in FY 20 (another significant decrease—down from 714 in FY19), with an agreement rate of 83%.
Since BSEA filings are confidential, the only publicly accessible information about those is what can be gleaned from the relatively small number of written decisions about some of the cases. However, Reece Erlichman has provided insight into some of the trends reflective in the bulk of the filings. There was an increase in filings regarding providing services in the Least Restrictive Environment (“LRE”), typically involving Parents resisting efforts to move the student into a less inclusive setting. There was a bump in the number of requests involving students with hearing impairments and a continued significant number of filings involving the responsibilities of state agencies, such as DMH and DDS.
A full review of the BSEA statistics from the past 10 years can be found at https://www.mass.gov/bsea-statistics.
A Note of Gratitude
We take this opportunity to express immense gratitude to the BSEA. When we consider how various entities and individual responded to the Covid-19 crisis, the BSEA stands out as one of the most remarkable ones. The BSEA, certainly not blessed with the resources of other governmental agencies, didn’t miss a beat. Due to the commitment, vision, and hard work of the BSEA director and hearing officers, the BSEA’s assistance in resolving disputes about the provision of special education services continued without pause. For this, our community is eternally grateful.
We would like to highlight the significant contribution of one hearing officer, Ray Oliver, who retired near the close of FY20 after forty-one years at the BSEA. Ray demonstrated a deep passion for moving adversaries beyond their proud inflexibility as they prepared to do battle in hearings before him. He was truly masterful, most often in pre-hearing conferences but even the day hearings were to begin, in guiding parents, school administrators, and attorneys out of their steadfast certainty to a recognition of various shortcomings. More importantly, Ray was able to so often to get the varied people involved to recognize the long-term costs for both sides of fighting to the bitter end, especially when young children were involved and the parties had many years of dealing with each other ahead of them. His pragmatism and genuine concern for the human costs of litigation spoke volumes to the parties and counsel, and much more often than not, led even the most adversarial and zealous advocates to fair and practical compromise. We are grateful for having the great fortune of practicing before such a fine man and wish him all the best.
Springfield Public Schools and Ollie, BSEA #2007894, 26 MSER 275 (Amy Reichbach; November 10, 2020) represented the seventh ruling between the parties and the result of a nine day hearing. Team meetings were described “long, tense, contentious and chaotic.” The Student at the center of this protracted and bitter dispute was a twenty year old with multiple disabilities, including sensory integration deficits, intellectual impairment, ASD, and ADHD. Parent alleged that Springfield had failed to offer FAPE since April 2017. According to Parent, the relationship between the family and the District had deteriorated due to the misconduct of Springfield officials and to the point that Ollie was afraid to participate in his own IEP meetings. Specifically, Parent argued that Springfield had failed to provide Ollie with a highly qualified reading coach and appropriate reading intervention; failed to create and deliver appropriate transition services; and failed to provide travel training. As a senior during the 2018-2019 school year, Ollie participated in a number of district-level transition programs designed to prepare students for life after high school, including monthly activities through Operation Graduation, a program that tracked progress toward graduation and college acceptance. Concerning the May-October 2018 IEP, the district committed a procedural error by not conducting the requisite three year evaluations prior to that Team meeting. However, in a further example of the “no harm, no foul” assessment of procedural missteps, the Hearing Officer found that this did not have a substantive impact because the district knew the student well and when it did eventually reconvene on those reports, no substantive changes to IEP were proposed. Regarding the lack of a 1:1 aide, there was no violation of FAPE because there was no evidence presented that the Student required a 1:1 aide to be successful in the dual enrollment program he was participating in. Concerning the 2019-2020 IEP, the district amended it three times to address Parent’s concerns and Ollie did not avail himself of many of the services offered—so there was no denial of FAPE. The IEP proposed for Ollie for the period from April 16, 2020 to April 15, 2021 provided for placement at College Steps, a dual enrollment program, and proposed service delivery for academic and transition goals, including reading and explicit transition instruction.
The issue of whether some failures to provide all the services in the IEP constituted a “failure to implement” the IEP was also addressed. The hearing officer considered whether these failures were “substantially significant” given the proportion of services missed versus the services delivered. Here, the Student did not receive the 20 minutes per week of counselling but that was not considered substantially significant because he was making progress towards his social emotional goals and he had access to a counselor for general education. While he failed to receive pull out math instruction from a special educator, the teacher providing the instruction was very experienced and her lack of re-certification was due to a lapse in the district submission of paperwork. Procedural errors, such as completing the flowchart outside the Team meeting or failing to have certain people at the Team meeting, were also considered insignificant. As discussed above, not conducting the three-year evaluations prior to the Team meeting convening was considered insignificant as well since the district knew the Student well and when they did convene on the evaluations, no changes to his programming were made. Concerning allegations that the district personnel were abusive in Team meetings, it appeared that the conduct of the Parent and advocate were disruptive to the meetings. In addition, the Parent had refused the district’s request to have facilitated team meetings, something that could very well have resolved any such issues at the Team meeting level. One area of compensatory services ordered was for the failure to provide tutoring during ESY.
While we are troubled by the dismissal of certain significant “procedural violations,” in particular the failure to timely conduct three year evaluations, as well as deeming insignificant the failure to completely implement the IEP, this decision reiterates the necessity of connecting such failures to substantive deprivations of FAPE to obtain relief from the BSEA.
Parents Are Partially Successful In Moving To Consolidate The Cases Involving Their Two Children
The Parents in Acton-Boxborough Regional School District and Stewart, BSEA #2101061, 26 MSER 334 (Amy Reichbach; December 23, 2020) moved to consolidate this case with one filed the same day on behalf of Stewart’s sibling that was pending before Hearing Officer Rosa Figueroa. The District did not oppose the motion to consolidate preliminary proceedings. The basis for the motion was not that the siblings were twins or so alike in their profiles. In fact, Stewart and his brother were in different classrooms, and different schools, within the district. Stewart had developmental and socioemotional disabilities and Parent alleged that ABRSD discriminated against him and against her, on the basis of race, ethnicity, color, disability, and English language learner status. According to Parent, among other things, the District created a hostile environment by failing to respond appropriately to Stewart’s allegations of bullying; failed to convene a Team meeting in response thereto; improperly involved the School Resource Officer (SRO) in behavioral incidents; unlawfully seized Stewart and his mother and used excessive force on them; disclosed personal information about Stewart to the police department; improperly utilized the SRO to investigate Stewart and his brother’s absences; and implemented a 1:1 aide without Parent’s consent and without convening a Team meeting to discuss the need for said service. Parent requested a declaration of procedural and substantive violations and a finding that ABRSD violated a number of laws and regulations, including the Individuals with Disabilities Education Act (IDEA), Section 504 of the Rehabilitation Act of 1973, the Family Educational Rights and Privacy Act, as well as the United States Constitution policies, memoranda, and the District’s handbook. She also requested that the BSEA find that the District committed intentional infliction of emotional distress, loss of consortium, false imprisonment, and false arrest; find that Parent had exhausted her administrative remedies; and award Parent compensatory services, monetary and punitive damages, and attorneys’ fees and costs.
The Parent maintained that Stewart’s case and that of his brother arose out of the same facts, and the consolidation of the two matters would: (1) conserve administrative resources; (2) avoid inconsistent rulings; (3) eliminate the need for witnesses to testify twice to the same set of facts; (4) avoid scheduling conflicts; and (5) provide a singular forum for discovery issues. As such, she argued, the two cases should be consolidated for all purposes. The district indicated it would be amenable to consolidation for limited pre-hearing purposes, in the interests of efficiency. Although the BSEA Hearing Rules do not specifically provide for consolidation of matters, pursuant to 801 CMR 1.01(7)(j), where multiple proceedings involve “common issues,” the Hearing Officer may consolidate them “with the concurrence of all parties and any other tribunal that may be involved.” Furthermore, group hearings may occur “if it appears from the request for a hearing or other written information submitted by the Parties that the matters involve questions of fact which are identical,¼but [i]f, at any stage of such group hearing, the Presiding Officer finds that any individual appeal involves questions of fact unique to the individual Petitioner¼the Presiding Officer shall sever the appeal and hear it individually.” In addition, although not controlling, Rule 42 of both the Massachusetts and the Federal Rules of Civil Procedure provide that courts may consolidate cases that involve a common question of law or fact. The Hearing Officer along with Hearing Officer Catherine Putney-Yaceshyn previously issued a Joint Ruling in In Re: Norton Public Schools and Harrison & Isabella, BSEA#1504277 and #1504282, 21 MSER 75 (2015), consolidating those two matters for purposes of pre-hearing proceedings, including conference calls and rulings, but held that the cases would proceed separately to hearings.
Here, Stewart and his brother were in different classrooms, and different schools, within ABRSD. Furthermore, the allegations in Stewart’s hearing request involved facts that were distinct and separate from the allegations involving his brother. For instance, in Stewart’s case, Parent contended that the District responded inadequately to bullying of Stewart by failing to convene a Team meeting, among other things. In addition, Parent asserted that the District improperly utilized an SRO in response to Stewart’s behavioral incidents and that the District implemented a 1:1 aide for him without parental consent. These claims raised legal questions that were unique to Stewart. However, the hearing officer acknowledged that there may well be some common questions of law and fact, particularly those that involve the District’s treatment of Parent and claims for which Parent seeks exhaustion, which ABRSD argued were outside the scope of the BSEA’s jurisdiction. The hearing officer held that with respect to these claims, the goal of administrative efficiency was best served by consolidating the matters for the limited purposes of considering them. In determining whether to consolidate these matters, it was significant that ABRSD did not file any opposition to Parent’s motion. In addition, the hearing officer noted that she was informed that Hearing Officer Figueroa had indicated that she would deny the motion to consolidate in the case before her and therefore, further communication between the parties and the Hearing Officers was required to determine whether all parties and tribunals involved concur in the consolidation of the matters for pre-hearing proceedings “only insofar as they involve common questions of law and fact.”
Therefore, the cases would be consolidated only for purposes of pre-hearing proceedings and only insofar as they: a) involved common questions of law and fact; and b) the parties and other hearing officer concurred in such consolidation. The two cases would thereafter proceed separately to evidentiary hearings and separate, final decisions for each student would be issued.
We applaud the hearing officer’s thoughtful consideration of the motion to consolidate and hope, for the sake of efficiency and consistency, that the hearing officers remain open to motions to consolidate and even for the BSEA director to consider such requests made at the time of the filing of the hearing requests.
Failure To Provide Records Is An Appropriate Issue For The BSEA
The hearing officer addressed a chronic issue for Parents and their attorneys and advocates—the failure to provide in a complete and timely manner student records—in Student v. Malden Public Schools, BSEA #2102352, 26 MSER 308 (Sara Berman; November 13, 2020). Parent filed at the BSEA for Malden’s failure to fully and timely provide Student’s records. Malden moved to dismiss, claiming this was not within the BSEA’s jurisdiction. The hearing officer denied the motion, holding that the right of parents to examine the educational records of students with disabilities constitutes one of the procedural safeguards that is deemed an essential component of FAPE. As such, a dispute over access to records of special education students concerns “the identification, evaluation, education program or educational placement of a child with a disability or the provision of a free and appropriate public education to the child¼” and may be a proper subject for a due process hearing. MGL c. 71B, §2A(a); see also 20 USC §1415(b); 34 CFR 300.507(a); 603 CMR 28.03(3). We applaud Hearing Officer Berman’s determination that failing to provide records fully and timely is not a minor procedural violation, but one with significant substantive ramifications.
An Inappropriate Program Could Be Fixed With the Addition of a Specialized Teacher
Student v. Whitman-Hanson Regional School District, BSEA #2007520, 26 MSER 310 (Sara Berman; November 27, 2020) involved a three year old Student with multiple medical issues, including significant hearing loss. Parents sought placement at the Clarke School for Hearing and Speech. The district offered its integrated preschool program. The hearing officer held that the proposed IEP and placement were not appropriate. However, in an example of the broad power hearing officers have in fashioning a remedy for an inadequate program, including one different than what the Parent sought, the hearing officer held that the district’s program could be made appropriate by adding “a Teacher of the Deaf, qualified in listening/spoken language, to be responsible for providing the majority of Student’s direct instruction. The Teacher of the Deaf shall be available in Student’s classroom throughout each school day when Student is present.” The Parents’ other criticisms of the program, such as inappropriate peers and the physical set up of the room, did not make the program inappropriate. In an unusual component to such a determination, the Hearing Officer went further and also found that Clarke would be appropriate if the district could not or would not provide the additional service required by the decision.
Funding For Outside Placement Denied
Marshfield Public Schools and Ruth, BSEA #2005814, 26 MSER 154 (Raymond Oliver; September 4, 2020). The fifteen year old Student had ADHD, dyslexia, and chronic migraines and was unilaterally placed at Middlebridge School, an unapproved private school, in February 2020. The bitterness of the dispute betwe en the parties was evident in the fact that this was the fifth case involving the parties and with the following introductory statement to the hearing officer’s analysis: “The evidence overwhelmingly demonstrated, as did the conduct and demeanor of the parties during this 5 day hearing, that the relationship between Parent and MPS is completely toxic, malignant and beyond repair. Based on the past and continuing antagonism between Parent and the district, I agree with the parties that Ruth cannot be educated within MPS at the current time.” The district offered placement in three neighboring school districts with IEPs incorporating many services and accommodations, including in home tutoring, for Ruth’s migraines. The Parent failed to meet her burden of establishing that Ruth could not be educated within a program in the public school setting as proposed in Marshfield’s proposed IEPs, or that Ruth required either a private day school or residential school placement to address her special education needs. Relying on the principals of FAPE and LRE, the hearing officer denied reimbursement for and prospective placement at Middlebridge. Having found that Marshfield’s proposed programs were adequate, the hearing officer did not need to make a determination about the reasonableness of Middlebridge as a placement. However, he did go further, and noted that if the district had offered Middlebridge as placement, he would have found it inappropriate due to the commuting distance.
District Offers Landmark—So Claim For Carroll Fails
In Student v. Lincoln Public Schools, BSEA# 2007623 (Rosa Figueroa; October 20, 2020), the Student’s placement at the Carroll School had been funded for 4 years by the district. When the district refused to continue funding the placement at Carroll, Parents funded the 5th year at Carroll and sought reimbursement. For the year in question, the District offered placement at the Landmark School, a private special education school that serves essentially the same type of student that Carroll does. Parents maintained that “the pervasiveness and profound severity of Student’s disability and the mental health impact of moving to another school, in addition to the travel distance, would be of such magnitude that Student would not be able to access his education or make effective progress.” The Parents were adamant that Landmark was inappropriate for Student because it could not meet his unique needs and circumstances. The hearing officer disagreed and held that since Landmark was an appropriate placement, the district was not obligated to fund Carroll. This case is another reminder that the parent’s burden in a case for funding an outside placement is first to establish that what the district is putting on the table, whether in-district, a collaborative, or a private placement, is inadequate. While a parent may not understand why a district would not agree to fund a comparable program in terms of cost and programming that the Parent wants, if the district is unwilling to do so, it is often much more difficult to establish the inadequacy of the district’s offering of a different private placement.
Discovery of Principal’s Notes
Malden Public Schools, BSEA #2004105, 26 MSER 308 (Sara Berman; October 5, 2020), involved the issue of whether the Student was able to safely enter and exit his school building (the Beebe Elementary School) or whether, as Parents alleged, his access to school was compromised by inadequate and/or inappropriately located handicapped parking spaces, unreliable bus transportation, and related obstacles. The Parents sought the production of the principal’s private notes and the district moved for a protective order. The Parents claimed these were discoverable both as part of a student’s record and in response to a specific discovery request for communications between district personnel about the student. The principal’s notes were for his exclusive use and not shared with anyone. Therefore, as to the first rationale, such notes are explicitly excluded from the definition of “student records” in the Massachusetts Student Record Regulations at 603 CMR 23.04 which provides that: “personal notes of teachers or other school employees that are used, for example, as memory aids, but that are neither released nor accessible to ‘authorized school personnel’ are not considered part of the student record.” Concerning the second rationale, the records were not responsive to the discovery request seeking communications since they were not shared with anyone. This hearing officer’s decision was contrary to the ruling in Arlington Public Schools, BSEA No. 1611465 (22 MSER 153) (Rosa Figueroa; 2016). In that case, the Student’s teachers, using their personal cell phones, texted information to each other about the Student’s educational needs and services. The texts referred to the Student by name. The hearing officer ruled there that the district was required to produce the text messages to the parents in response to a discovery request for intra-staff communication and because the texts were part of the Student record.
Nashoba Regional School District and Quinelle, BSEA #2009112, 26 MSER 242 (Amy Reichbach; October 13, 2020) involved an eight year old unilaterally placed at Carroll. Parents sought the production of the district’s evaluators’ test protocols, computerized scoring sheets, recording sheets, and similar material. “Test protocols” are copyrighted standardized forms used to collect data during a neuropsychological assessment. Examination of these forms can be important in challenging the interpretations/conclusion of tests. The district claimed producing these documents would violate copyright law as set forth in 17 USC § 501(a). The hearing officer cited her earlier ruling in Ruling on Grafton Public Schools’ Motion for a Protective Order, BSEA #1506275 (21 MSER 131) (Amy Reichbach: June 12, 2015), that: “Federal copyright law protects against the distribution of copies of a copyrighted document, such as a test protocol. Since IDEA and FERPA generally do not require the distribution of copies of an education record, but rather parental access to inspect and review, Federal copyright law generally should not be implicated under these regulations.” The hearing officer gave the Parents access to computerized scoring sheets, recording sheets, and any other materials that provided raw data and identified student by name, associated with the testing listed in Parent’s Discovery Requests. She denied access to test protocols and test booklets that did not contain such raw data, except to the extent that access to a test booklet was required to carry out a proper “explanation and interpretation” of these records. To the extent Parents sought information regarding how testing was performed by District evaluators, the hearing officer noted that they could question witnesses at hearing.
Records From a Private School For Which Reimbursement Is Not Sought
In Wilmington Public Schools, BSEA # 2102656, 26 MSER 309 (Rosa Figueroa; November 23, 2020), the Parents filed a hearing request seeking reimbursement for their unilateral placement of the Student at the Equinox Residential Treatment Center in Hendersonville, North Carolina between October 2018 and August 2019. Wilmington subpoenaed records from The Winchendon School, a private school that the student began attending after August 2019 and for which the Parents did not seek reimbursement or prospective funding. The Parents moved to quash the subpoena on the grounds that the Winchendon records were irrelevant since they were not seeking reimbursement of any Winchendon tuition, prospective placement there, and because the Student attended there after the period for which the Parents claimed reimbursement. The hearing officer denied the Parents’ motion to quash because they lacked standing to challenge a subpoena to a third party, relying on Rule VII C of the Hearing Rules for Special Education Appeals that specifically provides in part: “A person receiving a subpoena may request that a Hearing Officer vacate or modify the subpoena.” One way for Parents to get around the standing issue would be for them to instruct Winchendon not to disclose the records of the Student. Since the BSEA cannot enforce a subpoena, the district would have had to file a lawsuit in Superior Court to do so. That is rarely done since it incurs costs to do so, may not be successful, and might take more time than the District would have in the BSEA proceedings. However, refusing to disgorge these records might be held against the Parents by the hearing officer in the BSEA proceeding. Lastly, while such records may not have much relevance or may not be ultimately be admissible at the BSEA hearing, it is hard to argue that records that such records would not satisfy the minimum requirement of “discoverability”.
Compelling Observation of a Unilateral Private School Placement
Worcester Public Schools and Ryder, BSEA #2100796, 26 MSER 324 (Amy Reichbach; December 3, 2020). Student had been unilaterally placed at the Bancroft School, a non-approved private special education school. The district sought an order to allow them to observe Ryder at Bancroft, either in person or virtually. Massachusetts General Law Chapter 71B, § 3 and 603 CMR 28.07(1)(a)(3), the Commonwealth’s observation law, gives parents the right to observe district programs but says nothing about private programs. Hearing Rule V governs discovery, or the informal and formal exchange of information, in BSEA proceedings, and Hearing Rule VII(B) allows the BSEA to issue subpoenas, including those directed at nonparties. However, nothing in the BSEA Rules or the Standard Rules of Adjudicatory Practice and Procedure allows a Hearing Officer to issue a subpoena requiring a nonparty to permit a party to enter its premises for any reason. Therefore, the hearing officer stated that, to the extent Worcester chooses to pursue this course of action, it would not be able to do so before the BSEA. In addition, the BSEA has no authority to enforce a subpoena even if it did issue the order.
The Student in Bedford Public Schools, BSEA# 2006076, 26 MSER 325, (Rosa Figueroa; October 26, 2020) was a thirteen year old Boston student with emotional disability who had been attending Bedford schools via the METCO program since kindergarten. During a 2019 hospitalization, Student was diagnosed with Disruptive Mood Dysregulation Disorder, Attention-Deficit Hyperactivity Disorder, PTSD, Depressive Disorder and Anxiety Disorder. Student’s emotional needs increased and he became increasingly dysregulated, displaying behaviors that placed him and others at risk of harm. After discharge, he was subject to myriad suspensions at school, and multiple incidents of aggressions at home, which at times necessitated police intervention. Following an extended evaluation at Dearborn’s STEP program, Dearborn recommended placement a small therapeutic setting with a high staff to student ratio. Dearborn reported that the smaller, less stimulating therapeutic environment at Dearborn had provided a sense of increased containment for Student where he was afforded the opportunity to work at his own pace and engage in activities that promote success. Bedford asserted that it could no longer serve him in-district because it did not have an appropriate program or peers for Student and the Bridge Program, where Student had been served to date, did not meet the recommended criteria and was no longer appropriate. Bedford also claimed Student made minimal progress towards academic and social emotional goals. The Bridge Program provided supports to students’ participation in inclusion settings. Bedford therefore looked to hand the Student back to Boston. BPS proposed placement in a small-group, substantially separate, therapeutic program within the Boston Public Schools. Parents opposed the move back to Boston. Parents maintained that with a 1:1 aide, elimination of restraints, and more support, the Student could remain in the Bridge Program. Student’s Team, including Boston, reconvened on December 13, 2019 and recommended placement in a substantially separate, therapeutic program in Boston, where Student would receive all of his academics, counseling, and social skills in the small group setting with a high teacher-to-student ratio. Parent accepted the IEP but refused the placement and the Student returned to his stay put placement in Bedford with a 1:1 aide. Bedford staff testified that even with aide support, the Student could not properly engage, remain regulated, or effectively work towards his goals. Student testified that he felt “watched all the time” by staff and that he did not feel supported in Bedford. Bedford and Boston followed the proper procedures for “Program Schools” that do not believe their program appropriate any longer and the student requires an out-of-district placement: the Team shall conclude the meeting pursuant to 603 CMR 28.06(2)(e) without identifying a specific placement type and shall notify the school district where the student resides within two school days. At that team meeting if they determine they cannot educate the student, they must first consider an “in-district” program, i.e. a Boston Public Schools Program. Here, Parent had the burden of showing what was offered was inappropriate even though Bedford filed for the determination that what it was proposing provided FAPE. The hearing officer held that the overwhelming evidence established that in order to receive FAPE, Student must transfer to Boston’s proposed program. Parent had no expert support for her position that he could remain in Bedford or that Boston’s proposed program was inappropriate.
In Belmont Public Schools and Devereux Behavioral Health, BSEA #2103476, 26 MSER 325 (Rosa Figueroa; December 8, 2020), Devereux wanted to terminate the Student, who was placed there pursuant to an IEP by Belmont. Parents filed a Request for An Accelerated Hearing and Motion for Stay Put seeking, in part, an interim order entitling Student to stay put at Devereux during the pendency of the dispute; an order entitling Student to stay put at Devereux until another appropriate placement was identified and became available; and an order compelling Belmont to arrange and fund any additional personnel or services to maintain Student’s and others’ health and safety while he remained at Devereux. In support of their position, Parents argued that Student was entitled to stay-put at Devereux during the pendency of this dispute because it was the placement called for on his last-accepted IEP. Though multiple referral packets had been sent out, no placement had been identified and Student was unable to safely return home.” The IDEA’s “stay-put” provision requires that unless the State or local educational agency and the parents otherwise agree, during the time that a parent and school district are engaged in an IDEA dispute resolution process, “the child shall remain in the then-current educational placement of the child¼.” 20 USC §1415(j); 34 CFR §300.514. BSEA decisions have suggested that “the ‘stay-put’ right does not necessarily ensure staying at the same location, but rather, ensures the same program and kind of placement—that, potentially, can be provided at a different location.” In re: Falmouth Public Schools, the Cotting School, and Susan, BSEA #05-1581, 10 MSER 496 (2004). Nevertheless, although BSEA cases have determined that the “stay-put” requirements could be fulfilled by providing student with services that were “comparable” to those he or she had been receiving, but in a different location, such cases depend on the availability of another “viable” placement. That is determined case by case. Private special education schools are subject to laws and regulations, including ones regarding stay put, for students placed there pursuant to IEPs. There are exceptions for an IAES in disciplinary proceedings when a student poses a danger to himself or others. Even where a private program follows 603 CMR 28.09(12) and its own termination policy, under certain unique circumstances where a student has no other placement available to him and is unable to return home safely, his “stay-put” placement has to be the then-current placement at the private school until a new appropriate placement is identified. See In Re: Framingham Public Schools, Guild for Human Services, Inc. and the Department of Developmental Services, BSEA # 1808824, 24 MSER 68 (2018). Here, the hearing officer issued the order for stay put since no alternative placement had been identified.
Reading Public Schools, BSEA #2008819, 26 MSER 329 (Alina Kantor Nir; December 22, 2020) is Hearing officer Nir’s first opinion. The Parents moved for a stay put order and for change of placement. Student had been attending the Bridge Program, a substantially separate program at Reading Memorial High School, since June 2016. On February 29, 2020, in response to the IEP dated 1/16/2020-5/14/2020, Parent accepted placement at the Bridge Program. Subsequently, on May 11, 2020, in response to an IEP dated 5/15/2020-6/7/2020, Parent rejected said placement. As such, Student’s last accepted placement was the Bridge Program, a substantially separate program at the Reading Memorial High School. Parent challenged the “adequacy” of the program, but that is not the appropriate analysis for what constitutes stay-put. Parent rejected several portions of the IEP and therefore the hearing officer ordered that the stay put program was comprised of the portions of the accepted IEP and last agreed upon portions of previous IEPs. The hearing officer denied the motion to change placement.
Compensation For Bullying In the Form of a Placement Is Not Within the Bsea’s Authority
Monomoy Regional School District, BSEA #2009834 (Sara Berman; November 20, 2020) reinforces the principle that the BSEA is a court of limited jurisdiction and authority. Parents alleged that prior to and including the 2017-2018 school year (Student’s third grade year), Monomoy failed to protect Student, who was on a 504 plan to address his ADHD, from bullying and harassment by other students despite its knowledge that such bullying and harassment was taking place. Parents allege that as a result, Student suffered from emotional trauma and distress, as did his family members. Parents further asserted that on August 28, 2018, because of Monomoy’s ongoing failure to protect Student and Student’s worsening emotional trauma, they unilaterally placed him in a private, sectarian, non-special needs school. Parents raised no claims under Sec. 504 of the Rehabilitation Act, the Individuals with Disabilities Education Act (IDEA), 20 USC Sec. 1400 et seq., MGL c. 71B, or the regulations implementing these statutes. Rather, they sought reimbursement and prospective funding for the private school placement. Moreover, the Parents did not allege any nexus between Student’s disability and either the incidents of harassment and bullying or the District’s allegedly inadequate response to those incidents. The Hearing Officer found that the Parents’ complaint related not to his status as a child with a disability, but to his “general student status.” See In Re: Springfield Public Schools and Xylia, BSEA No. 12-0781, 18 MSER 373 at 377 (Byrne, 2012). As such, the BSEA dismissed the matter for lack of jurisdiction. n
 The Parents in this matter were represented by the commentator’s firm, Kotin, Crabtree & Strong.