Introduction

The BSEA has remained busy, despite the restrictions imposed by the pandemic. The third quarter of 2020 brought a total of five decisions and eleven rulings, which is consistent with the agency’s usual quarterly output. This would not have been possible but for the cooperation and dedication of hearing officers, parties, and attorneys, who worked together to cope with the challenges that remote proceedings present and to keep the BSEA hearing process functioning smoothly.

In this quarter’s decisions and rulings, we see hearing officers and litigants continue to wrestle with many of the perennial issues under the Individuals with Disabilities Education Act (“IDEA”) and MGL c. 71B, including application of the free appropriate public education (“FAPE”) standard to individualized education programs (“IEPs”); consideration of parents’ rights to reimbursement for unilateral placements; and interpretation of the BSEA Hearing Rules to ensure that the hearing process is equitable for all involved. As usual, parents proceeded pro se in a number of cases, with varying results.

This Commentary will discuss four of the decisions and nine of the rulings issued during the third quarter. One decision (Boston Collegiate Charter School) concerned the proposed transfer of a charter school student to a program within her district of residence. In another (Sharon Public Schools), the parents sought reimbursement for privately provided social skills services. A third (Haverhill Public Schools) involved a parent’s substantive and procedural challenges to multiple IEPs. The fourth and most factually complex (Nashoba Regional School District) concerned a district’s refusal, over a period of approximately two years, to provide a residential therapeutic placement for an elementary student with multiple disabilities.[1]  The rulings span such subjects as whether parents may refuse the issuance of a diploma (Blue Hills Regional Technical High School); the circumstances under which the BSEA can interpret a settlement agreement (Andover Public Schools); when DESE may be a proper party to a case (Boston Public Schools); the discoverability of peer IEPs (Newton Public Schools); and various issues regarding the conduct of a hearing (Springfield Public Schools, Malden Public Schools, and Nashoba Regional School District).

Charter school’s inability to provide appropriate setting leads to hearing officer approval of placement offered by district of residence

In Boston Collegiate Charter School and Urmila, BSEA # 2009046, 26 MSER 147 (Lindsay Byrne, 9/2/20), a charter school district filed a hearing request seeking to change the placement of a thirteen-year-old student from full inclusion within the charter school to a substantially separate classroom within her district of residence, the Boston Public Schools (“BPS”). Both the Boston Collegiate Charter School (“BCCS”) and BPS participated in the hearing. The pro se parent, after taking part in an initial conference call, failed to respond to multiple communications from the BSEA and from BCCS and failed to participate in prehearing conferences or in the hearing.

The student, a rising eighth grader, had attended BCCS since the start of fifth grade (September 2017). During the fall of 2017, she had been diagnosed with ADHD. In the spring of 2019, after exhibiting behavioral dysregulation at school, she was placed on an IEP that provided a full inclusion program. Immediately on her return to school in September 2019, the student’s behavior deteriorated precipitously. Following a social/emotional/behavioral evaluation, BCCS convened the Team and proposed placement in a small, substantially separate, therapeutic classroom. The parent concurred at the meeting, but failed to respond to the IEP proposing such a placement.

Because BCCS did not have any substantially separate classrooms focusing on therapeutic services, BCCS, pursuant to 603 CMR 28.10(6)(a), scheduled a separate placement meeting that would include BPS. Despite a number of attempts to obtain the parent’s participation, she did not attend either the initial or a rescheduled placement meeting. The Team thus met without her, and proposed placement in one of several BPS programs. BPS subsequently spoke with the parent about the options. Although she initially seemed interested in one of the programs, she failed to follow up or to respond to multiple subsequent outreach efforts. As of the hearing, the parent had not responded to the IEP or toured the proposed classroom.

The hearing officer noted that BCCS had the burden of proof because it was the party seeking to move the student to a more restrictive setting. The hearing officer had no difficulty finding that BCCS had met its burden. The uncontroverted evidence showed that the student needed the type of substantially separate program that BCCS was proposing and that BPS stood ready to provide. The hearing officer relied on the testimony of BCCS’s Director of Student Support (who had been directly involved with the student’s program) and the social/emotional/behavioral evaluator, both of whom she found to be both thoughtful, knowledgeable, and credible. Based on their testimony, the hearing officer concluded that, although BCCS had developed and implemented increasingly restrictive special education interventions, it had exhausted all of its available options and found itself unable to meet the student’s needs. She found that BCCS had correctly followed the procedure set out at 603 CMR 28.10(6) by involving BPS in the placement planning process, and that BPS had timely identified at least two appropriate, available placements for the student. The hearing officer therefore concluded that BCCS’s IEP, calling for a substantially separate therapeutic placement within BPS, provided the student with a FAPE.

Because the parent failed to participate in the hearing process, it is unsurprising that the district prevailed in this case. It is heartening to see that the hearing officer nevertheless performed a careful analysis of the evidence. It is also commendable that BCCS appears to have followed all procedures properly, including the sometimes-confusing sequence set out in 603 CMR 28.10(6). Moreover, the hearing officer commended BCCS’s “extraordinary efforts to include the Parent in the IEP development process.” 26 MSER at 151 n.4. Those efforts could serve as a primer for compliance with a district’s obligations to attempt to ensure parent participation in the Team process, as set forth in 34 C.F.R. § 300.322(d) and 603 CMR 28.07(1)(c).

Unilateral placement standard applied to parents’ request for reimbursement of privately provided summer and after-school services; observation report may (or may not) trigger requirement to convene Team within ten school days

In Sharon Public Schools and Rand, BSEA # 1912408, 26 MSER 162 (Amy Reichbach, 9/7/20), the pro se parents sought reimbursement for social skills instruction that they had provided for their son at their own expense during the summer of 2017 and after school during the fall and winter of the 2017-2018 school year. During that time, the student attended the Manville School, where the Sharon Public Schools had placed him pursuant to an IEP. He subsequently spent some time out of school, and was then placed at the LABBB Collaborative. The parents asserted that the student’s 2017-2018 IEP was not appropriate. They further contended that Sharon had committed a procedural error, amounting to a violation of FAPE, by failing to consider an observation report prepared by the provider of the private social skills services.

The hearing officer found that the parents were not entitled to relief. She began by stating that the private social skills programs that the parents had provided “are essentially unilateral placements.” 26 MSER at 172. The hearing officer mentioned, but did not address, “the question whether Parents properly notified the District that they would be unilaterally placing [the student] in these [private] programs and seeking reimbursement.” Id. at 172-73. We believe that application of IDEA’s notice provisions to privately obtained after-school and summer programs would be unfair and would present a trap for the unwary. The notice provisions, by their terms, apply only when parents “enroll the child in a private elementary school or secondary school without the consent of or referral by the public agency,” 20 U.S.C. § 1412(a)(10)(C)(ii), which is also described as “removal of the child from the public school.” Id. § 1412(a)(10)(C)(iii)(I), (II). Provision of supplemental services during the summer or after school can hardly be equated to “removal of the child from the public school” that would trigger a notice requirement, nor would it be reasonable to expect a lay parent to understand the statutory language in that way.

Applying the same FAPE analysis that courts and hearing officers apply to more comprehensive unilateral placements, the hearing officer found that the 2017-2018 IEP was substantively appropriate and provided the student with a FAPE. The parents argued that the IEP goals were not sufficiently challenging, but the hearing officer stated that the parents had provided no contemporaneous evaluations (aside from the observation report) from which she could determine the student’s cognitive or social functioning levels as of the relevant time. Moreover, although some of the goals “may appear to have lower benchmarks,” the hearing officer accepted the district’s testimony that “the objectives incorporate increased levels of difficulty” and “reflected that [the student] was essentially learning new skills.” 26 MSER at 174.

Turning to the observation report, the hearing officer found that the parents had failed to prove any procedural violation that would constitute a deprivation of FAPE. The parents argued that the observation report was an independent educational evaluation (“IEE”) that triggered various protections under state and federal law. The hearing officer, after first stating that “I must determine whether Ms. Stoll’s observation report was, in fact, an IEE such that the District was required to timely consider it,” 26 MSER at 174, ended by stating that “I need not determine whether the report is, in fact, an IEE,” because Sharon had timely considered it in any event. Id. at 176.

Although the hearing officer did not decide whether an observation report constituted an IEE, her discussion is significant because the question is likely to arise in other cases. The hearing officer began by noting that “neither federal nor state law regarding IEEs explicitly excludes or includes observations.” 26 MSER at 175. Turning to Massachusetts’ “observation law,” which forms part of MGL c. 71B, § 3, she pointed out that the statute refers to “parent-designated independent evaluators and educational consultants” without defining those roles, although DESE guidance distinguishes between them. She further noted that “the observation law is silent as to any obligations on the part of a school district to consider an observation report that has been presented.” Id. In the case at bar, the hearing officer stated, it “appears that [the observer] acted as an educational consultant, rather than an independent evaluator,” and thus it was “doubtful that her report would, by itself, constitute an IEE triggering Sharon’s responsibility to convene a Team meeting” pursuant to 603 CMR 28.04(5)(f). Id. She stated, however that “[r]equiring a school district to timely consider any report arising out of an observation would effectuate” the purpose of the observation law, which is “‘to ensure that parents can participate fully and effectively in determining the child’s appropriate educational program.’” Id. (quoting c. 71B, § 3). We hope that the Board of Elementary and Secondary Education will keep this purpose in mind the next time it amends 603 CMR 28.04 and will clarify that observation reports are IEEs, triggering the same obligations as other evaluation reports.

Lack of evidence dooms most of pro se parent’s claims; some compensatory services awarded

In Haverhill Public Schools, BSEA # 2005314, 26 MSER 176 (Sara Berman, 9/14/20), a pro se parent brought broad substantive and procedural challenges to multiple IEPs spanning more than two years. The parent sought compensatory relief for the district’s alleged denials of FAPE.[2]  She also asserted that the student was entitled to compensatory services for periods when the district had failed to implement accepted or partially accepted IEPs.

The parent failed to prove any substantive or procedural FAPE violations. The hearing officer alluded repeatedly to the fact that the parent had presented no evidence to show that the IEPs were substantively inappropriate. This comment is typical: “The initial IEP took Student’s medical and developmental concerns into account and based on Haverhill’s understanding of Student at the time, proposed a gradual introduction to the school environment. Parent rejected this IEP, but presented no witnesses and no documentary evidence such as outside evaluations that stated that the IEP was inappropriate.” 26 MSER at 188. Overall, the hearing officer concluded, “[e]ach IEP was based on evaluative and medical information available to the Team at the time, as well as on extensive input from Parent and, where relevant, from Student’s outside medical provider and evaluators from Franciscan Children’s Hospital.” Id. at 189.

On the procedural side, the parent contended that the district’s initial evaluation was not comprehensive and appropriate; that the district had prevented her from participating meaningfully in the Team process; that the district had predetermined the outcome of the initial Team meeting; and that the fact that the same person had served both as Team facilitator and as the special educator at Team meetings was impermissible. The hearing officer found no evidence to support any of the violations that the parent alleged.

The hearing officer did find that Haverhill had failed to provide accepted services during certain periods. She therefore ordered compensatory relief, finding that certain related services were owed for a period of approximately six weeks during which the district had delayed in contacting the student’s pediatrician and thus delayed the start of the accepted services. She also ordered compensatory tutoring services to make up for another period of approximately three months during which the district had not been able to find a provider, and one hour of compensatory speech therapy to make up for missed sessions. The student was not entitled to compensatory summer services because the district offered summer programming that she did not attend. Citing C. G. v. Five Town Comty. Sch. Dist., 513 F.3d 279 (1st Cir. 2008), the hearing officer also denied compensatory home-based services for 2019-2020, finding that the parent had “actively impeded Haverhill in fulfilling its obligations to Student” by refusing to allow service providers into the home. 26 MSER at 187.

The hearing officer made one curious remark in the course of her discussion, stating that Haverhill had “made multiple attempts to offer Parent compensatory services outside of the mediation context, in an effort to resolve its dispute with Parent,” 26 MSER at 187 (footnote omitted), but that “Parent has not availed herself of these offers.” Id. The hearing officer went on to state that it was “beyond the scope of this decision to analyze the various settlement offers . . . and to assess whether Parent’s rejection of those offers . . . was reasonable under the circumstances.” Id. It is unclear why the hearing officer brought this up. Settlement discussions are generally inadmissible in evidence. The reasonableness or unreasonableness of a response to a settlement offer may be relevant to a party’s ability to recover attorneys’ fees at the conclusion of a matter, see 20 U.S.C. § 1415(i)(3)(D), (E), but should have no bearing on the merits of the case.

An additional year of compensatory education in residential therapeutic program awarded to make up for district’s unreasonable insistence on inappropriate day programs for student with severe emotional and behavioral issues

The dispute in Nashoba Regional School District and Preston, BSEA # 2004002, 26 MSER 190 (Amy Reichbach, 9/23/20), involved a nine-year-old student with a highly complex profile, who had significant academic, social, emotional, and behavioral needs. He had been diagnosed with autism spectrum disorder, anxiety, oppositional defiant disorder, disruptive mood regulation disorder, reactive attachment disorder, depressive disorders, ADHD, non-learning verbal disability, and specific learning disabilities in reading and writing, inter alia. The decision, too, is complex. It followed a nine-day hearing and ran to 94 pages in the original, including 230 numbered factual sections.[3]  Throughout, the hearing officer did a meticulous job both of recounting the multifaceted factual situation and of analyzing the intertwined legal issues.

At the time when the parents filed their hearing request, the Nashoba Regional School District (“NRSD”) was proposing placement in its in-district Early Rise program, which it had first characterized as partial inclusion and then as a substantially separate program. The parents sought an out-of-district placement in a year-round residential therapeutic school. The district then proposed am out-of-district day program, and finally, once the hearing was underway, proposed a residential therapeutic placement, which the parents accepted. The issues for decision by the hearing officer, therefore, were whether NRSD’s previous proposed IEPs were appropriate and, if not, whether the parents and student were entitled to compensatory remedies.

The parents challenged the district’s IEPs for the periods from March 2018 to April 27, 2021. The hearing officer concluded that the IEPs, from an October 2018 amendment through the date of the decision, were not reasonably calculated to provide the student with FAPE. In her discussion, the hearing officer focused on what appeared to be NRSD’s willful blindness to the mounting evidence of the student’s increasingly severe needs.

The hearing officer found that the first of the challenged IEPs (March 2018-March 2019), developed in the spring of the student’s first grade year, was appropriate when written. “During the term of the IEP, however, evidence accumulated that [the student] was struggling at home and at school.” 26 MSER at 235. For instance, he had been taken to the hospital and admitted to a CBAT, whose clinicians reported “that he was engaging in aggressive and impulsive behaviors, completing academic work inconsistently, and could not step down safely to a public school setting.” Id. at 236. In its October 2018 IEP amendment, however, “[d]espite numerous strong recommendations for a residential therapeutic extended evaluation from experienced clinicians, NRSD maintained, on the basis of its experience with [the student] during kindergarten and first grade, that Early Rise was appropriate to meet his needs. NRSD did not update [the student’s] goals or services and proposed an assessment at a therapeutic day program rather than a residential program.” Id.

After the student completed a day extended evaluation, he continued to display significant behavioral and emotional issues. When the Team reconvened in March 2019, however, NRSD developed an IEP (March 2019-March 2020) that continued to propose placement in Early Rise, despite strong recommendations from the student’s psychiatrist, therapist, and an independent neuropsychologist for a therapeutic residential placement. The Team reconvened in May 2019, shortly after the student had been re-hospitalized for violent behavior. Again, NRSD insisted on proposing Early Rise.

The hearing officer held that there “is no question that at the time it was proposed, the Draft 2019-2020 IEP was not reasonably calculated to provide [the student] with a FAPE.” 26 MSER at 237. She faulted the Early Rise staff for “their emphasis on integrating [the student] with his neurotypical peers.” Id. The district staff’s misguided insistence on inclusion “demonstrate[d] their limited understanding of the complexity of his profile and the severity of his presentation.” Id. In light of “all the information NRSD had before it at the time it proposed the 2019-2020 IEP,” the hearing officer could discern “no reasonable explanation for the District’s insistence that Early Rise could meet [the student’s] complex needs.” Id.

When the Team reconvened in April 2020 to develop the student’s next IEP (April 2020-April 2021), NRSD belatedly proposed an out-of-district placement—but only in a day program, not in the residential setting that the student required. The hearing officer therefore found that this IEP, too, failed to provide him with FAPE.

Summarizing the entire sorry history, the hearing officer stated:

Beginning [in fall 2018], experienced clinician after experienced clinician recommended a therapeutic residential placement for [the student], or at least an extended evaluation in that setting to learn more about the degree to which [his] emotional impairments and mental health were intertwined with his ability to learn. As [the student’s] presentation worsened at home and in CBATs and manifested, at times, in school, NRSD personnel maintained—in the face of multiple expert opinions to the contrary—that his dysregulation, escalation, aggression, low frustration tolerance, etc. stemmed from the home and were manageable in a partial inclusion, and then a substantially separate in-district, setting, the latter with significant inclusion opportunities. Meeting after meeting, the District insisted that Early Rise could meet [the student’s] needs. NRSD’s position was not only unreasonable, but untenable.

26 MSER at 238. What emerges from the hearing officer’s decision is that the district’s inexplicable rigidity deprived the student of at least two years of the specialized programming and placement that he desperately needed, and forced the parents into extended litigation to wrest from the district the services he should have received all along.

As a compensatory remedy, the hearing officer ordered NRSD to provide the student with an additional year of residential therapeutic placement, through the end of the 2021-2022 school year. She acknowledged that the parties had already resolved the parents’ claim as to the 2020-2021 IEP by the district’s agreement in July 2020 to a residential placement, and stated that, “[c]onsidering the equities, . . . the appropriate relief is an additional year of residential therapeutic placement.” 26 MSER at 240. The hearing officer did not provide any further explanation of her rationale, such as why she ordered one additional year instead of the two years that the district had wrongly denied the student; what she saw the equities as being; or why she did not grant the parents’ request for additional compensatory relief in the form of reimbursement for the costs of therapies, hospitalizations, evaluations, and similar expenses. Perhaps there was no way of truly compensating the student for his lost time. Sadly, as the hearing officer stated, “It is impossible to know the outcome, had NRSD proposed more intensive services and placements at an earlier date,” id., as it clearly should have done.

Second-semester high school senior seeks relief; hearing officer discusses (but does not decide) whether parents and student can refuse diploma where student has met school’s graduation requirements

In Blue Hills Regional Technical High School, BSEA # 2008213, 26 MSER 127 (Rosa Figueroa, 7/6/20), a high school student and her parents had filed a hearing request in May of her senior year, asserting that the student had not met her IEP and/or transition plan goals and therefore had been denied a FAPE and was not ready to graduate. The district moved to dismiss or, in the alternative, to narrow the scope of the hearing, arguing that the parents had accepted the IEPs at issue and that the student should receive her diploma because she had met all of the school’s graduation requirements.

The hearing officer granted the motion to dismiss as to IEPs prior to January 2020, since those IEPs had been fully accepted and had now expired. As the hearing officer stated, it is well established “that once a fully accepted and implemented IEP has expired, hearing officers are precluded from re-visiting those IEPs, as long as the parent had an opportunity to participate in the development of the IEP in question and received the notice of parental rights regarding IEP acceptance/rejection and dispute resolution options.” 26 MSER at 130.

In its motion to narrow the scope of the hearing, the district argued that claims regarding an IEP developed in January 2020 should be barred insofar as they concerned the period from the issuance of the IEP, which the parents initially accepted, through April 2020, when they rejected it. The hearing officer found that the record was not sufficiently developed for the hearing officer to be able “to ascertain whether the accepted services in the January IEP were properly implemented, or whether the IEP was appropriate to meet Student’s needs.” 26 MSER at 130. She therefore denied the motion.

Although neither ruling turned on the graduation issue, the hearing officer discussed it. She seemed to agree with the district’s position that “since Student passed the MCAS and has otherwise completed the requirements for graduation she cannot refuse her diploma in June 2020.” 26 MSER at 131. The hearing officer relied on DESE Advisory 2018-2, which she described as “follow[ing] a long standing DESE policy that graduation determinations are a regular education decision, but, that the BSEA retains jurisdiction over allegations involving a denial of FAPE regarding rejection of the final IEP.” Id. She did not acknowledge or address cases such as Quabbin Regional School District, BSEA # 05-3115, # 05-4356, 11 MSER 146 (William Crane, 8/16/05). That case states that, although the fulfillment of state and district standards such as passing MCAS and completing courses “is necessary for a student to graduate, it may not always be sufficient,” as, for example, when the parents assert (as they did in this case) that the student has not made sufficient progress on her IEP goals and objectives. Id. at 153. This issue may remain to be litigated, either in further proceedings in this case or in another one.

BSEA jurisdiction over settlement agreements, revisited

At issue in Andover Public Schools, BSEA # 2007733, 26 MSER 137 (Sara Berman, 7/15/20), was the effect of a prior settlement agreement, which provided that, with an exception not relevant here, “neither [the parents] nor the Student shall seek public funding for any privately obtained or provided educational services, programming, or placements for the Student from the 2020-2021 school year through the end of the Student’s possible eligibility for special education.” 26 MSER at 138. In their hearing request, the parents sought continuation of funding for the Landmark School on a prospective basis for the 2020-2021 school year.

Andover moved for partial summary judgment, arguing that the settlement agreement barred the parents’ claim. In the alternative, Andover took the position that “if the language . . . of the [agreement] is ambiguous, requires interpretation, or should be set aside or modified, then the dispute is in the nature of contract, and the BSEA lacks jurisdiction to address it. Rather, the parties must seek relief in a court with jurisdiction to decide contract disputes.” 26 MSER at 138. The parents argued that the agreement did not bar pursuit of prospective funding for a private school, that it only barred the pursuit of reimbursement for unilateral placements, and that interpreting the agreement to preclude a hearing officer from ordering a prospective private school placement would violate IDEA.

This case is the latest in a long line seeking BSEA interpretation of settlement agreements. As the hearing officer stated, while there has been no conclusive guidance from the First Circuit or the Supreme Judicial Court as to whether the BSEA has jurisdiction to interpret such agreements, “[i]n general, the BSEA’s practice has been to consider the existence and scope of a settlement agreement when adjudicating cases.” 26 MSER at 139. When an agreement is ambiguous or a party questions its validity, however, “the BSEA has referred the parties to courts of competent jurisdiction for resolution.” Id. Here, the hearing officer concluded that the contractual language was ambiguous, requiring “an inquiry into circumstances surrounding the negotiation of the [agreement], in order to determine the parties’ intentions and to ascertain whether or not there was a ‘meeting of the minds.’ Such inquiry is within the purview of a court with jurisdiction over contract disputes, and not the BSEA.” Id. She therefore granted the motion for partial summary judgment.

Any practitioner who is grappling with issues concerning a prior agreement would do well to refer to the hearing officer’s discussion in Andover. While it may be worth resorting to the BSEA in the hope that a hearing officer will examine the agreement, parties and attorneys should be prepared for the possibility that they may be required to go court.

DESE remains in case, responsible for special education students in state custody

The student in Boston Public Schools & Massachusetts Department of Elementary and Secondary Education, BSEA # 2008568, 26 MSER 140 (Sara Berman, 8/10/20), was a nineteen-year-old who, at all times relevant to the action, had been in the legal and physical custody of the Department of Youth Services (“DYS”). He filed a hearing request asserting claims against both the Boston Public Schools (“BPS”), his district of residence, and the Department of Elementary Education (“DESE”), which is ultimately responsible for the provision of FAPE to all eligible students within the state, including those in state custody. The student alleged that DESE had failed to deliver or ensure delivery of special education services specified in his accepted IEP.

DESE moved to dismiss for failure to state a claim. Although DESE acknowledged that its Office of Special Education in Institutional Settings (“SEIS”) shares responsibility with local districts and agencies such as DYS for providing special education to eligible students in state custody, it argued that the types and amounts of services to be provided by SEIS/DESE were discretionary, based on available resources.

The hearing officer rejected this position. She stated that DESE, as the agency ultimately responsible for ensuring the provision of FAPE, “may be held liable if it neither delivers such services itself, through SEIS, nor ensures that other agencies (such as LEAs) provide special educational services to which students may be entitled.” 26 MSER at 142 (citing 20 U.S.C. § 1412(a)(1)(A), (a)(11)). The hearing officer went on to discuss 603 CMR 28.06(9), which “creates an administrative structure for delivery of special education services, and makes clear that a student’s LEA continues to have duties to the student, while in state custody.” Id. at 143. As she explained, however, “This regulation cannot and does not . . . relieve DESE of its ultimate responsibility, under both federal and state law, to ensure delivery of FAPE to eligible students in DYS custody, including Student.” Id. The hearing officer therefore denied DESE’s motion to dismiss.

This case serves as useful reminder to practitioners filing hearing requests on behalf of students in state custody. In such cases, consideration should be given to naming DESE, together with the local school district, as a responsible party.

Discoverability of peer IEPs, revisited

The district in Newton Public Schools, BSEA # 2010632, 26 MSER 152 (Rosa Figueroa, 9/2/20), filed a motion for a protective order, challenging the parents’ right to receive redacted copies of peer IEPs pursuant to a routine discovery request. The parents had agreed that all personally identifying information should be redacted from the IEPs, that the IEPs would be provided only to parents’ experts and parents’ counsel, and that the IEPs would be destroyed or returned to Newton at the conclusion of the hearing—all of which are protections to which parties commonly agree and that hearing officers routinely order. Newton, however, argued that release of redacted IEPs, even with these protections, would violate the other students’ rights under the Family Educational Rights and Privacy Act (“FERPA”) and the Massachusetts Student Records Regulation, 603 CMR 23.00, as the district asserted that those students would likely be identifiable even if their names and other personal information were withheld. Newton further contended that the parents could obtain equivalent information about the appropriateness of the proposed peers through observations of the proposed program and/or through the testimony of Newton’s witnesses at hearing.

The hearing officer found no difficulty in denying Newton’s motion. She noted that the “issue and arguments before me are not novel to the BSEA or this Hearing Officer.” 26 MSER at 153. After reviewing the caselaw, she found “no reason to depart from the line of previous consistent rulings.” Id. Because of “Parents’ agreement to limit access of those IEPs to counsel herself and her experts, as well as her agreement to return or destroy the IEPs involved at the conclusion of the Hearing,” the hearing officer saw no need to issue a protective order. Id.

Given the clear weight of BSEA authority, one wonders why some school districts continue to object to discovery requests seeking peer IEPs (with proper protections) and continue to seek protective orders preventing such discovery, as Newton did in this case. We suggest that the BSEA may wish to consider either an amendment to BSEA Rule V or issuance of a standing order, making clear that peer IEPs are discoverable and setting forth the protections that must attend production of such IEPs. This would also have the advantage of eliminating the need for counsel to file and hearing officers to consider agreed-upon protective orders, as is now commonly done. In addition or in the alternative, hearing officers might consider imposing sanctions pursuant to BSEA Rule IX on districts that persist in asserting discovery challenges that fly in the face of established BSEA law.

Postponements, sequestration, subpoenas, exhibits: procedural rulings connected with conduct of hearings (and conduct of parties)

This quarter brought a greater than usual number of rulings involving procedural matters connected with the conduct of hearings. Those rulings are discussed briefly below.

          Mid-hearing postponement request alleging witness unavailability. In the Nashoba Regional School District matter discussed above, the district filed its third postponement request after three days of hearing had occurred, and fewer than six days before the next day of hearing was to take place (see BSEA Rule III.A.1). NRSD asserted that it needed a continuance because its special education director had injured her leg and had been instructed by her physician not to work.

The hearing officer denied the motion. She noted that any postponement would cause a delay of at least two to three months. She found that such a delay would cause significant prejudice to the parents, as the student was “stuck” in a DMH-funded facility and would be forced to remain there until the hearing was concluded and the hearing officer had determined his educational placement. The hearing officer further observed that any prejudice to the district was less than the prejudice to the parents. The hearing was being conducted by Zoom and there was no evidence that NRSD’s administrator could not testify remotely, with her testimony broken into smaller blocks if necessary. The hearing officer also suggested that other administrators could attend if the special education director was unable to participate for the entire time. Nashoba Regional School District and Preston, BSEA # 2004002, 26 MSER 125 (Amy Reichbach, 6/30/20).

·              Compliance with discovery deadlines and subpoenas. The district in Springfield Public Schools and Ollie, BSEA # 2007894, 26 MSER 133 (Amy Reichbach, 7/2/20), informed the parent seventeen days before the hearing that its employees would not comply with her subpoenas unless she paid them at a per diem rate. The district further informed the parent, two days before a discovery deadline, that it would not be producing all of the information she had requested. The hearing officer granted the parent’s motions to require Springfield to produce the witnesses and the information. As the hearing officer stated, the district had previously represented that its employees were available to testify, and had filed no motions to modify, vacate, or quash the parent’s subpoenas. Its employees would therefore be required to appear, without payment by the parent. With regard to the discovery responses, Springfield had been aware of the deadline for over a month and had not requested a different due date. The district was therefore required to comply by the original due date.

In closing, the hearing officer admonished the district, stating that its actions “are not in keeping with the ‘appropriate standards of conduct’ it is my obligation to ensure.” 26 MSER at 134 (footnote citing BSEA Rule IX(A) omitted). She warned that, “[s]hould the District fail to produce properly subpoenaed witnesses and/or fail to meet its discovery deadlines, I will impose sanctions up to and including prohibiting Springfield from introducing its own evidence and/or witnesses at Hearing.” Id.

·              Sequestration of witnesses. In another ruling in the same case, Springfield Public Schools and Ollie, BSEA # 2007894, 26 MSER 135 (Amy Reichbach, 7/24/20), the hearing officer denied the parent’s motion to sequester the district’s witnesses at hearing. The parent alleged that sequestration was necessary because some of the witnesses had stated that they were afraid to speak honestly about the student for fear of retaliation from the district. The hearing officer had set up a procedure requiring the parent to submit affidavits demonstrating the need for sequestration, but the parent failed to provide any. When the parent raised new allegations after the hearing was underway (but before any of Springfield’s witnesses had testified), the parties agreed on an unspecified process for investigating those allegations.

The hearing officer adopted the analysis set out in Stoneham Public Schools, BSEA # 13-00160, 18 MSER 269 (William Crane, 9/5/12), which in turn relied upon the six factors set forth by the Second Circuit in U.S. v. Jackson, 60 F.3d 128, 135 (2d Cir. 1995), to be used in determining whether to grant or deny sequestration under Federal Rule of Evidence 615. She concluded that there was no credible support for the parent’s allegations and thus no reasonable basis to believe that sequestration was necessary to ensure a fair hearing. She therefore denied the parent’s motion.

·              Motion to quash subpoenas. In Malden Public Schools, BSEA # 2004105, 26 MSER 143 (Sara Berman, 8/13/20), the district moved to quash three subpoenas, issued to its superintendent; its former assistant superintendent for special education (now no longer employed by the district); and the student’s former Team chair.

The hearing officer granted the motion as to the superintendent because there was no showing that he had evaluated the student, provided the student with services, or possessed necessary information that could not be provided by other witnesses. The hearing officer stated that her ruling as to the superintendent was subject to reconsideration if the parent could show that he possessed such information.

The hearing officer denied the motion as to the former assistant superintendent because that individual had not objected to the subpoena and because Malden lacked standing to object to a subpoena issued to someone no longer in its employ. The hearing officer stated that she would revisit the matter when and if the former employee filed an objection.

The hearing officer denied the motion as to the former Team chair, finding that she “appear[ed] to be in a position to provide relevant testimony regarding the development of Student’s IEP.” 26 MSER at 144.

·              Motion to strike exhibits due to one-day delay. A day later, in the same case, the hearing officer issued her ruling on the parents’ motion to strike the district’s exhibits. Malden Public Schools, BSEA # 2004105, 26 MSER 145 (Sara Berman, 8/14/20). The parents based their motion on the fact that they had received the exhibits one day after the due date. The delay had been the result of a UPS delivery problem. The hearing officer found “no evidence that this problem was attributable to, or was in control of, either party.” Id. She noted that, after learning of the problem with UPS, Malden’s counsel had sent the parents multiple exhibits via e-mail. She found “no showing of prejudice to Parents from less than one full business day’s delay in in receipt of the School’s exhibits.” Id. The hearing officer therefore denied the motion. She stated, however, that if the parents believed that they had been prejudiced by the delay, she would “entertain a request for a one-day postponement of the first day of the hearing to allow them additional time to review the documents at issue.” Id.  n

[1] The remaining third quarter decision, Marshfield Public Schools and Ruth, BSEA # 2005814, 26 MSER 154 (Raymond Oliver, 9/4/20), concerning a unilateral placement at the Middlebridge School, is discussed in this firm’s Fourth Quarter Commentary.
[2] The hearing officer had earlier granted Haverhill’s motion for partial summary judgment on the parent’s prospective claims, on the grounds that the parent and district had agreed to an IEP and placement as of June 2020 that mooted those claims by providing the parent all the prospective relief she sought. Haverhill Public Schools, BSEA # 2005314, 26 MSER 123 (Sara Berman, 6/30/20).
[3] This was the only decision of the quarter in which both parties were represented by counsel.