Commentary on Massachusetts Special Education Decisions: 2nd Quarter 2021, by Melanie R. Jarboe:
February 02, 2022
In the second quarter of 2020, the BSEA issued fourteen substantive rulings and seven decisions. The decisions, which are discussed in detail below, included six cases in which parents sought reimbursement for unilateral placements at private schools and/or sought prospective placement at private schools:
· Arlington Public Schools & Jaylen, BSEA #2008870, 27 MSER 178 (Byrne, April 2, 2021);
· Concord Public Schools, BSEA #2100891, 27 MSER 200 (Berman, May 3, 2021);
· Hampshire Regional School District, BSEA #2103975, 27 MSER 227 (Kantor Nir, May 28, 2021);
· Framingham Public Schools, BSEA #2101266, 27 MSER 244 (Putney-Yaceshyn, May 28, 2021);
· Barnstable Public Schools, BSEA #2104905, 27 MSER 264 (Kantor Nir, June 21, 2021); and
· Dennis-Yarmouth Regional School District, BSEA # 2105659, 27 MSER 305 (Figueroa, June 25, 2021).
The other decision concerned whether parents’ refusal to consent to a three-year evaluation would deny the student FAPE, in which case substituted consent would be appropriate (Hamilton-Wenham Regional School District, BSEA #2104095, 27 MSER 287 (Kantor Nir, June 22, 2021).
Parents were represented by counsel in four of the seven cases that proceeded through hearing (Concord Public Schools, Dennis-Yarmouth Regional School District, Barnstable Public Schools, and Hamilton-Wenham Regional School District); were represented by an advocate in one (Arlington Public Schools and Xaylen); and proceeded pro se in one (Framingham Public Schools). Representation status is unknown in one case (Hampshire Regional School District). Parents prevailed in two out of the seven cases that proceeded through a full hearing (Concord Public Schools and Dennis-Yarmouth Regional School District).
The rulings involved a wide variety of issues:
· The BSEA’s authority to grant substitute consent for implementation of IEPs. Pembroke Public Schools, BSEA #2108690, 27 MSER 187 (Kantor Nir, April 22, 2021);
· A request for joinder of a public school district when the student attended a program school. South Shore Regional Vocational Technical School District, BSEA #2108266, 27 MSER 197 (Kantor Nir, April 28, 2021);
· The BSEA’s jurisdiction over settlement agreements. Triton Regional School District and Trevor, BSEA #2105891, 27 MSER 217 (Reichbach, May 6, 2021);
· A student’s entitlement to an independent clinical and/or extended evaluation at public expense. Foxborough Public Schools, BSEA #2109192, 27 MSER 224 (Kantor Nir, May 14, 2021);
· Cross motions for directed verdicts regarding a procedural violation. (Acton-Boxborough Regional School District, BSEA #2103253, 27 MSER 260, (Figueroa, June 17, 2021);
· A student’s right to continued special education eligibility. Harvard Public Schools, BSEA #2108881, 27 MSER 303 (Kantor Nir, June 23, 2021); and
· A motion to dismiss regarding a parent’s claim that a student required 1:1 support in her day placement and that she required compensatory services as a result of inadequate service provision during a period of hospitalization. Barnstable Public Schools and Dennis-Yarmouth Regional School District, BSEA #2109285, 27 MSER 320 (Mitchell, June 28, 2021).
Two cases produced a number of rulings each:
· Hearing Officer Amy Reichbach issued three rulings in Acton Boxborough Regional School District and Stewart, BSEA #2101061, 27 MSER 185, 222, and 253, (Reichbach, April 6, May 7, and June 7, 2021)). The case involved allegations of severe bullying and the district’s alleged failure to investigate properly. Rulings covered the sequestration of witnesses, cross motions to vacate/quash subpoenas, and the district’s motion for a directed verdict.
· Hearing Officer Alina Kantor Nir issued four separate rulings in Lawrence Public Schools and DESE, BSEA #2107071, 27 MSER 173, 175, 193, and 216 (Kantor Nir, March 29, April 1, April 26, and May 3, 2021). The case concerned a parent’s claim that the district was not providing the student with special education and related services in accordance with his IEP from Puerto Rico. Three of the rulings concerned a challenge to the sufficiency of the hearing request, a motion to dismiss for lack of jurisdiction and/or failure to state a claim, and DESE’s motion to dismiss. In the fourth ruling, Hearing Officer Kantor Nir dismissed the matter without prejudice for the parent’s failure to prosecute her claims.
As usual, the rulings and decisions demonstrate that the hearing officers carefully considered the varied and complex facts and legal issues in each matter.
CASES ALLEGING THAT A DISTRICT’S PROPOSED PLACEMENT DENIES FAPE
Six out of seven of the decisions this quarter were in so-called “placement cases,” in which parents alleged that the district’s proposed IEP and placement were inadequate and requested that the hearing officer order the district to fund placement elsewhere. In order to win a placement case, parents must prove first that the IEPs and placements offered by the district are/were not reasonably calculated to provide the student with FAPE, taking into account all information available to the Team at the time the IEP was developed, and—if parents are able to prove that the proposed program was inappropriate—parents must then prove that their chosen placement would be appropriate for the student. When a hearing officer is considering claims for prospective placement (as opposed to reimbursement), the hearing officer also has to consider whether the IEPs and/or placement could provide FAPE with modifications.
In some second quarter cases, the student was already at the parent’s chosen placement, and parents were seeking both reimbursement and prospective funding. In others, the student was still in the district and the parents were asking the hearing officer to order prospective placement elsewhere.
Parents/Guardians Prevail In Two Placement Cases
As is manifest in these two cases, parents and guardians who win their BSEA cases have several key attributes. Both cases included well-founded expert support for the positions that the parents/guardians advanced. Parents/guardians were represented by experienced counsel. The students had been enrolled in the district programs, either the exact program the district continued to recommend or a program that was substantively similar to what the district was recommending, and the parents/guardians were able to clearly demonstrate the students’ lack of progress in those programs. In the unilateral placement case (Concord), the parents’ expert had completed robust observations that provided further support for her eventual testimony. In the other case (Dennis-Yarmouth), no observation occurred. However, the depth of the student’s school refusal and global challenges across settings, the district’s half-hearted attempts to address those difficulties, and significant procedural violations outweighed the usual need for an observation. In both cases, the district witnesses testified to the students’ challenges in the district and, in one case (Concord) even raised concerns that the in-district programming would be inappropriate for the student.
Concord Public Schools
Concord concerned a student who was in the sixth grade during the 2020-2021 school year at Willow Hill, a MA-approved private special education school. The student had attended Concord elementary schools throughout elementary school, with the exception of first grade when he attended private school. The student has a complex profile, including cognitive abilities that are well-above average and generally strong academic abilities. Consistent with his diagnosis of Autism Spectrum Disorder, the student struggled with social communication, sensory integration, recognizing faces, anxiety, and attentional/executive functioning weaknesses. All witnesses agreed that the student wanted a friend but had been unable to develop one during his elementary school years in the district, despite significant efforts across multiple school years and targeted IEP goals. Further, Concord had invested significant resources in student’s program during elementary school, including funding private social skills group, both weekly after school and during the summer, providing student with a 1:1 aide throughout the school day, and funding wraparound support from an outside clinician who trained the student’s aide, counseled the student and parents, and served as a bridge between home and school. In addition, the student received push-in and pull-out services during the school day, including speech/language therapy and counseling, with occupational and physical therapies during earlier elementary school years. Finally, the student was unable to fully access the school cafeteria, music, gym, or Spanish classes, and often had to miss field trips as well, given his sensory issues and anxiety. For the student’s sixth-grade year, Concord was proposing placement in the ACCESS program, a full-inclusion program that included one period per day in a substantially separate setting and support from a shared-aide in general education classes throughout the remainder of the day.
The parties agreed that the student’s main area of need was social skills. Concord asserted that the student was progressing as would be expected, given his profile, and Concord proposed placement in an inclusion program in the middle school. However, the parents and their experts argued that the student’s progress had not been adequate or generalized in the Concord program and asserted that the student required a substantially separate setting with a small, consistent group of peers and consistent, embedded instruction in social skills and executive functioning skills.
Hearing Officer Sara Berman concluded that the parents had met their burden of proving that the proposed in-district placement for the student’s sixth-grade year would not provide him with FAPE. She credited testimony from the student’s neuropsychologist, Dr. Karen Kiley-Braebeck, regarding the student’s profound social skills deficits, anxiety, rigidity, negative cognitive distortions, and isolation in the public-school setting. Dr. Kiley-Braebeck, who had observed the student twice at Willow Hill and had observed the proposed sixth grade program in Concord, also testified that the many accommodations that the student received served to isolate him from his peers. Hearing Officer Berman further credited the testimony of Selene Gisholt, the clinician that Concord hired to provide the student with wraparound supports. Though Ms. Gisholt testified to progress in the student’s self-regulation abilities, she noted that despite the efforts of all involved, he had been unable to generalize the skills he learned in pull-out settings to the mainstream and that he had a complete lack of significant peer relationships at school. Ms. Gisholt further testified that she did not believe an inclusion setting was appropriate for the student in sixth grade. Hearing Officer Berman noted the parent’s testimony as well, highlighting her lack of animosity towards, and appreciation for, district personnel, and her lack of bias in favor of private over public schools. The hearing officer further credited the parent’s testimony regarding the student’s emotional distress at home and the improvements in his functioning since attending Willow Hill.
Concord’s witnesses did not dispute the parents’ claim that the student had no significant friendships at school, that he required significant accommodations to attend school at all, including effectively isolating him from a number of elements of the mainstream curriculum that caused him distress.
Having found that the student was not demonstrating effective progress in elementary school despite the relatively stable peer group and with the significant services and accommodations provided, and agreeing with Dr. Kiley-Braebeck’s conclusion that the student required placement in a less fragmented, substantially separate program with a consistent peer group, Hearing Officer Berman found that the proposed sixth-grade placement would not provide the student with FAPE. Having found the district’s proposed IEP and placements for both sixth and seventh grade inappropriate, Hearing Officer Berman considered the appropriateness of Willow Hill. She did find Willow Hill appropriate, given that the student was happier, navigated the school day without an aide, and had become more socially engaged. She also gave weight to Dr. Kiley-Braebeck’s endorsement of the Willow Hill placement after her observation of the student there.
Dennis-Yarmouth Regional School District
The student in Dennis-Yarmouth was a tenth grader who attended the district’s high school. He had experienced family instability, witnessed caregiver conflict and abuse, and had lived with numerous family members over the years. He had been diagnosed with Autism Spectrum Disorder, ADHD, and Major Depressive Disorder-Recurrent with anxious distress. He had attended public school with the support of an IEP for all of elementary and middle school years, and also received support outside of school. He was hospitalized once as well. He started high school at Cape Cod Regional Technical High School, but he struggled in that setting and the Team recommended that he return to Dennis-Yarmouth in a substantially separate classroom (the TIDES program), which transition occurred in November 2019. Even in the substantially separate placement, the student did not engage academically, had off-topic discussions with peers, was disrespectful to staff, and engaged in attention-seeking behaviors. Dennis-Yarmouth drafted a Behavior Intervention Plan that was never discussed by the Team or incorporated into his IEP. District staff testified that the student had not been making progress with written output during the 2019-2020 school year prior to the pandemic, and that his transition to remote learning was marked by social, emotional, and behavioral decline and eventually he stopped participating in remote learning altogether. Dennis-Yarmouth did not provide the students with TIDES Program services during the pandemic and its attempts to reengage the student were woefully inadequate throughout. Though all of the adults in his life agreed that the student needed to attend school in person for the 2020-2021 school year, he refused to attend. At some point during the fall of 2020, without the guardian’s consent, Dennis-Yarmouth changed the student’s placement to a full-inclusion, fully remote program that offered limited special education services.
Dr. Linda Daniels, Psy.D. evaluated the student in October 2020. The evaluation showed cognitive decline since the previous year, academic skills that were far below the student’s cognitive abilities, significant emotional distress, and deterioration in the student’s daily living skills. Dr. Daniels recommended placement in a residential therapeutic program given the student’s difficulty across settings.
The Team continued to propose placement in a full inclusion setting during student’s annual review, but then proposed that the student return to the TIDES Program after reviewing Dr. Daniels’ evaluation in December 2020. The guardian consented to the implementation of the IEP while rejecting the failure to propose a residential placement consistent with Dr. Daniels’ recommendations and expressing concern with the district’s unilateral provision of a full inclusion placement during the pandemic. The student increasingly withdrew from school, culminating in total school refusal, and his behavior escalated at home during the beginning of 2021. Dennis-Yarmouth’s efforts to re-engage the student were insufficient.
At hearing, Dennis-Yarmouth argued that if student would attend school, the TIDES Program would provide him with FAPE. However, Hearing Officer Rosa Figueroa noted that Dennis-Yarmouth’s inability to get the student back to school, and the district’s reliance on the guardian to manage the student’s behavior and access to education, all in the middle of his behavioral deterioration, was unreasonable. She felt that Dennis-Yarmouth had failed to acknowledge the complexity of the student’s needs and credited Dr. Daniels’ testimony that the student was in crisis and required round-the-clock special education services in order to re-engage with his education and make progress across his various areas of need. Hearing Officer Figueroa ordered Dennis-Yarmouth to forward application packets to appropriate residential placements, and to facilitate the student’s placement in an appropriate program as soon as possible. Though Hearing Officer Figueroa found that the litany of procedural violations had denied the student FAPE and that compensatory services would be appropriate as a result, she agreed with the guardian that it was not feasible to provide student with compensatory services other than placement in a residential setting.
Parents Lose Bids For Outside Placements
In contrast to the successful and well-developed cases on display in both Arlington and Dennis-Yarmouth, the other four placement cases suffered from many of the issues we see time and time again and parents therefore lost their bids for outplacement. Centrally, these cases were notable for lack of expert support for the parents’ position and/or hearing officers’ perception that the experts had insufficient support for their conclusions or recommendations.
Arlington Public Schools
The student in Arlington had been diagnosed with specific learning disabilities in reading and math and ADHD. He had attended elementary school in the district with the support of an IEP starting in first grade and transferred to the Carroll School for sixth and seventh grades (2019-2020 and 2020-2021). The student’s neuropsychologist, Dr. Rebecca Tubbs, recommended placement in a small, structured language-based classroom when the student was entering first grade as well as during his fourth-grade year. However, Arlington provided the student with an inclusion program throughout. Though the student began demonstrating mood and behavioral issues at home during his fourth-grade year, school staff reported that he was functioning well in school and the district’s three-year re-evaluation showed progress across all areas. In response to parent concerns, Arlington proposed a co-taught program for the student’s sixth grade year (2019-2020) that, according to Arlington, would provide more intensive and coordinated services than the student had received in elementary school. However, Arlington maintained that the student had made effective progress during elementary school and would continue to do so with the proposed IEP. The parents rejected the proposed IEP and placement and instead placed the student at Carroll.
Dr. Tubbs evaluated the student again in the fall of 2019 and, despite finding that the student made progress in Arlington’s program, she recommended placement in a comprehensive language-based program with similar peers, small classes, and intensive daily instruction in reading, writing, and math. After observing Arlington’s proposed sixth-grade placement at the Gibbs School in February 2020, Dr. Tubbs concluded that the program was too “decentralized” and insufficiently language-based. However, Dr. Tubbs did not observe either of the two language-intensive core academic courses. In response to Dr. Tubbs’ testing and observation, Arlington proposed to increase the direct reading instruction and counseling. Parents rejected the proposed IEP and student again attended Carroll for the 2020-2021 school year, but neither parents nor Dr. Tubbs observed the proposed seventh grade placement at Ottoson Middle School.
Hearing Officer Lindsay Byrne found that the proposed sixth and seventh grade programs provided the student with FAPE. She credited Arlington’s Team process, which included people who knew the student well and were able to discuss his profile, strengths, and needs; to craft IEPs tailored to him; and site the services and supports in an inclusion setting. She noted that the IEP Teams had provided more intensive special education services for sixth grade in response to parent request, even after the student had demonstrated progress with less restrictive supports in elementary school. In contrast, Hearing Officer Byrne found private evaluation reports and observations less persuasive and felt that they contained inconsistencies in data and inadequately supported conclusions.
Whether Hearing Officer Byrne fairly represented the inadequacies of Dr. Tubbs’ reports and testimony is unknown; however, the parents had only one expert witness and the Hearing Officer did not credit her testimony. Therefore, the parents were unable to carry their burden of proving that Arlington had denied the student FAPE.
Hampshire Public Schools
Hampshire concerned a student with ADHD, Mixed Receptive-Expressive Language Disorder, Specific Reading Disability (Dyslexia), Mathematics Disorder, and a Disorder of Written Expression who was, at the time of the hearing, attending third grade in the district. The district found the student eligible for special education in February 2020 after completing a core evaluation. Less than a month after the parent accepted the proposed IEP, the COVID-19 pandemic forced the termination of in-person schooling for the remainder of the student’s second grade year. According to the district, the student nevertheless made progress during remote instruction during the spring of 2020, though he was struggling to meet grade-level standards in ELA and math. Although the district proposed extended school year services for the summer of 2020, the parents declined the services so that the student could have a break. The Team proposed increasing the student’s special education supports and to have the student attend school in person four days per week during the fall of 2020. The parents instead chose for the student to remain fully remote but after he struggled to engage, the student returned to school for four days per week in October 2020. While the parents consented to the proposed program, they asked the Team to consider placement at White Oak and requested an independent educational evaluation.
Dr. Rachel Currie-Rubin completed the independent educational evaluation, which the Team reviewed in November 2020. The results were largely consistent with the school-based testing that had occurred earlier in 2020 and yielded recommendations for adjustments to student’s program including classroom accommodations, speech-language services, and intensive reading instruction with a sensory phonics-based program. Significantly, however, Dr. Currie-Rubin did not recommend a substantially separate placement. The district proposed an amendment to the student’s IEP based on Dr. Currie-Rubin’s testing, which amounted to a partial inclusion placement. The parents accepted the services while rejecting the IEP and continued placement in the district.
The Team met a number of times during the 2020-2021 school year. While the parents shared concerns regarding the student’s academic progress and social/emotional well-being, including dreading school, feeling different from peers, and peers making fun of student on social media, the district felt that the student was doing fine in school and that they were meeting his needs. The student began attending private therapy in January 2021 as well. The district continued to refuse the parents’ requests for placement outside the district.
Dr. Curie-Rubin observed the student in his placement and indicated that the student received consistent supports and services but that the student’s affect varied throughout the observation, that the student’s transitions to and from pullout sessions occurred midway through activities in his general education class, leading to a fragmented program, and that there was a mismatch between what was targeted in and out of the classroom. She noted further concerns that the student was overly prompt-dependent in the general education class. Following her observation, Dr. Currie-Rubin recommended changes to the student’s IEP, including increased consultation, becoming fluent in a skill outside the general education classroom, and the use of assistive technology. Dr. Currie-Rubin observed at White Oak and opined that the student’s reading and overall language skill would benefit from placement at White Oak. Still, however, she did not recommend a substantially separate placement.
Ultimately, Hearing Officer Alina Kantor Nir was convinced that the proposed IEPs and placement in the district provided the student with FAPE. She noted that the evidence showed that the student had made one year of progress in one year’s time (even with the pandemic) and none of the evidence suggested that student should have made more progress. Dr. Currie-Rubin did not opine on whether the student had made effective progress since January 2020, though she did acknowledge that the student had made progress in some areas and that he met many Massachusetts curriculum standards. The student’s private therapist testified that, although the student had said he wanted to attend White Oak, she could not comment on the appropriateness of the student’s IEP or placement. In contrast, the district presented witness testimony that rebutted Dr. Currie-Rubin’s concerns about the program and showed that the Team had been responsive to parental concerns and concerns raised by the independent educational evaluator throughout the student’s time on an IEP. Hearing Officer Kantor Nir further noted that the student had not been on an IEP for long and that parents had declined ESY services. Though she did find the proposed IEP appropriate, Hearing Officer Kantor Nir did encourage the district to consider Dr. Currie-Rubin’s recommendations relative to consultation time, gathering data regarding student’s prompt dependency, practicing learned skills the in general education classroom, and examining the student’s schedule to avoid fragmentation where possible.
The absence of an expert witness able to testify that the student was not making effective progress, that the proposed program was inappropriate, and that the parents’ chosen placement was necessary for the student meant that the parents were unable to meet their burden of proof. Though it may very well have been that the district’s proposed placement was inappropriate, the parents did not succeed in proving that to Hearing Officer Kantor Nir; again, we come back to the critical importance of an expert witness with well-founded, clearly stated knowledge of and recommendations for the student that align with what the parents are seeking programmatically.
Framingham Public Schools
The student in Framingham attended the Metro West Jewish Day School during grades six through eight, and the hearing concerned his placement for eighth grade (2019-2020). The student had a complex profile that included a communication disability; specific learning disabilities in reading fluency, written expression, and reading comprehension; executive function needs; and anxiety. After completing the student’s three-year re-evaluation, Framingham proposed placement in the district’s Language-Based Learning Disabilities (LLD) Program at Walsh Middle School, which would provide the student with small-group instruction for all content areas plus support for executive functioning, speech-language services, reading services, and study skills. After the student’s Mother observed the proposed placement in June 2019, the parents rejected the proposed IEP and placement. The rejection noted that the IEP did not include evidence-based reading or writing programs, that student would miss important coursework to receive his pullout reading services and speech/language therapy, that the IEP did not provide for extended school year services, and that the frequency of the proposed reading services was insufficient. Parents further alleged procedural violations and requested that Framingham extend a previous settlement agreement, which presumably provided some amount of district support for the student’s placement at Metro West, to resolve the IEP dispute concerning the student’s eighth grade year. Framingham convened the Team and amended the IEP to eliminate pullout reading services (instead proposing to provide these supports in the LLD program). The parents rejected the amendment and continued to request funding for the student’s placement at Metro West.
At hearing, the parent testified that the student did not require placement in a substantially separate setting and that she did not believe that the proposed reading support would be sufficient. She further noted her belief that the student required a math goal. However, the parents did not present any witnesses other than the student’s mother. No expert witness testified regarding student’s profile or needs, no expert witness had observed the proposed program, and—though one person from Metro West attended one day of hearing—no one from Metro West testified to student’s profile or needs.
Hearing Officer Catherine Putney-Yaceshyn credited the testimony of the district’s witnesses that they had based their proposed IEP on the data gleaned from the student’s three-year re-evaluation and that the proposed placement would provide him with FAPE. Again, there may have been a legitimate question regarding the appropriateness of Framingham’s proposed program for the student, and the district’s IEP amendment that decreased the intensity of the student’s reading services could have been problematic for the district. Though Metro West is not a special education school, they do provide specialized supports to students with disabilities, and it may have been that the parent could have made a case for its appropriateness. However, without an attorney, without expert witnesses, and without an observation of any kind, the parents’ case was doomed from the start.
Barnstable Public Schools
The student in Barnstable was diagnosed with Autism Spectrum Disorder and had attended the district’s public schools beginning in the 2015-2016 school year until she began attending Riverview in the fall of 2020, for her eighth grade year. District testing showed impairments in communication, pragmatic skills, attention, “very low” academic skills, visual perception, visual motor integration, and motor coordination. She demonstrated very low adaptive skills in the school setting, though her skills were stronger at home. Though the district’s cognitive testing placed the student’s full-scale IQ at 56, parents and service providers at Riverview disputed this and felt that the student was functioning in the 60-70 range. While attending Barnstable, the student was in a substantially separate classroom and required extensively modified work and frequent prompting. Though the student demonstrated behavioral difficulties during her transition to sixth grade, she made progress with the implementation of a behavior plan. The extent to which she received 1:1 support, was included in general education, received homework, and accessed after-school activities were disputed at hearing. The father felt that the student’s peer group was lower functioning than she was, and that this placement reflected Barnstable’s low standards for his daughter. However, Barnstable felt that the student was in the middle of her peer group in terms of functioning.
During the spring of 2020 and the COVID-19 pandemic, the student accessed remote instruction with the support of her grandfather. Though the student’s mother saw regression, the student’s father (with whom she lived starting in March 2020) and district agreed that the student made progress on all of her IEP goals during remote instruction. The Team met in June 2020 to discuss the student’s transition to Barnstable High School for eighth grade. The parents did not raise concerns regarding the student’s placement and no changes to the IEP were proposed. Pursuant to Barnstable’s IEP, the student would attend the Foundations Program, a substantially separate program that provided flexible scheduling options depending on student need. Though Barnstable offered the student extended school year services, she did not participate.
With notice to the district, the student’s father placed her at Riverview for her eighth-grade year (2020-2021). Parents and Riverview agreed that the student was well-placed in her peer group at Riverview and was making progress. The Team convened in September and December 2020 and in February 2021, and continued to propose an in-district placement, citing the student’s progress in the district. Parents observed the proposed program in March 2021 and continued to dispute its appropriateness for their daughter, alleging that the peer group was too low functioning and (somewhat puzzlingly) that the curriculum was also too rigorous.
Hearing Officer Alina Kantor Nir found that the parents had been active and meaningful participants in the decision-making process at Barnstable, that the IEPs in question for the student’s eighth grade year had been developed based on results from the student’s three-year evaluation and the student’s progress in the district during seventh grade, and that the student had in fact made progress in seventh grade. Without expert testimony that the proposed IEP, placement, or peer groupings were inappropriate, the parents were unable to carry their burden of proof. Hearing Officer Kantor Nir accordingly found that the IEPs proposed for both seventh and eighth grade were adequate to provide the student with FAPE.
Further, Hearing Officer Kantor Nir concluded that the parents had not proven their allegations that Barnstable failed to implement the students IEP in seventh grade and that the student was neither entitled to after-school care at public expense nor was she denied the ability to participate in extra-curricular activities.
When the list of hearing participants does not include a single independent evaluator, the district’s success is nearly assured. Though there may have been a live controversy regarding the student’s progress in seventh grade, the appropriateness of the peer groupings in seventh and eighth grades, and the adequacy of the program proposed for eighth grade, parents were unable to make any headway in that regard without expert testimony.
DISPUTED THREE-YEAR RE-EVALUATION MAY PROCEED
The district filed for hearing in Hamilton-Wenham, seeking an order that parents’ failure to consent to a student’s triennial re-evaluation would deny him FAPE, in which case substitute consent would be appropriate. Parents responded that they had refused consent for the re-evaluation due to “extenuating circumstances” and filed their own hearing request requesting reimbursement for private school placements made during the 2019-2020 and 2020-2021 school years. The instant decision covers only the re-evaluation issue; at the time of the decision, a hearing on the placement issue was still pending.
To provide a student with FAPE, the IDEA requires a district to follow procedures related to identification, evaluation, program design, and implementation practices such that the student receives an appropriate IEP. Pursuant to the IDEA, a district must conduct an initial evaluation before a student can receive special education services. After the initial evaluation, a district must re-evaluate a student not more frequently than once per year and at least once every three years unless the parent and the district agree it is unnecessary. It is the district’s burden to ensure that each assessment covers all areas of suspected disability. Before conducting an evaluation, however, the district is required to seek informed parental consent. Pursuant to Massachusetts law, if the parents refuse to consent to a re-evaluation, and the district believes that such evaluation is necessary to provide the student with FAPE, the district may file for hearing and seek substitute consent from the BSEA. A district must demonstrate that it has informed the parent as to which evaluations it seeks to administer and show that it has made reasonable efforts to obtain informed consent prior to seeking substitute consent from the BSEA.
The student in Hamilton-Wenham was in tenth grade. He had not attended district schools since fourth grade, having since attended a number of private placements and was homeschooled at various points as well. The district had completed the student’s three-year re-evaluation in 2013 and an additional psychological evaluation in 2015. In 2016, the parents and district agreed to complete an independent educational evaluation, which led to a disputed diagnosis. In 2017, parents referred student for a psychiatric assessment, an executive functioning and social communication evaluation, and a speech and language assessment. After a hearing between the parties during the 2017-2018 school year, the student attended Dearborn STEP for an extended evaluation during the winter of 2018-2019, but parents again disputed the resulting diagnoses. Following the extended evaluation, the student attended Pathways Academy for the remainder of the 2018-2019 school year. Parents did not believe Pathways was appropriate for the student, and unilaterally placed him at Chapel Hill Chauncy Hall for his ninth-grade year (2019-2020). At the time of the hearing, the student was attending Austin Prep.
In September 2019, the district proposed to complete the student’s three-year re-evaluation (academics, speech-language, psychological, educational, and observation). The district attempted to obtain the parents’ consent on four separate occasions, but the parents refused to consent to the evaluation. Witnesses for the district testified persuasively that re-evaluation was necessary for the development of an IEP that would provide FAPE. District witnesses felt that the previous evaluations were neither recent nor comprehensive enough to substitute for the three-year re-evaluation, and that they would not be able to develop an appropriate IEP without updated information regarding the student’s functioning. Parents and their expert testified that school-based testing would trigger the student’s PTSD, was unnecessary given the significant amount of testing from the previous few years, and was not in his best interest.
Hearing Officer Alina Kantor Nir concluded that Hamilton-Wenham had provided sufficient prior written notice to the parents regarding the proposed re-evaluation and that the parents had indeed refused to consent to the proposed testing. Hearing Officer Kantor Nir held that Hamilton-Wenham was lawfully entitled to conduct the re-evaluation because three years had passed since the student’s previous re-evaluation, the district had identified appropriate areas for assessment, the proposed evaluators were qualified, the student’s PTSD did not negate the district’s right or responsibility to complete the evaluation process, and—centrally—that the student would be denied FAPE without the re-evaluation. Hearing Officer Kantor Nir noted that the student’s education had been “highly disrupted,” with many school placements and periods with no placement at all, and that he had not been in the district for several years. She further noted the significant dispute between the parties as to the nature and extent of the student’s needs as well as the parents’ FAPE claims, as further reasons that a full re-evaluation was necessary and appropriate.
The lack of trust and respect between the parties in this case is palpable and the hearing clearly became heated at times. Even so, Hearing Officer Kantor Nir applied the law smoothly and in much the same way we have seen in other BSEA cases in the past: rarely will a hearing officer prohibit a district from gathering more information. n