Commentary on Massachusetts Special Education Decisions: 4th Quarter 2021, by Daniel T.S. Heffernan:
April 13, 2022
This quarter’s opinions include three stay put decisions. Two of these decisions, Chelmsford Public Schools and Swansea Wood School. BSEA# 2203132, 27 MSER 491 (Kantor Nir, December 2, 2021) and Student and Quincy Public Schools and The League School, BSEA# 2202940, 27 MSER 464 (Mitchell, November 18, 2021) give strong reiteration of the principle that stay put and other statutory and regulatory obligations apply to private schools educating publicly funded students. It also again demonstrates that while the BSEA is a court of limited powers, it has extensive authority to fashion a prospective remedy for students—and in these three matters, two different hearing officers exercised that power in ordering the private school and the district to provide additional programming and resources to maintain the students at the private schools. The hearing officer did an excellent job in balancing the competing interests involved in producing a student’s clinical records in In Re: Westfield Public Schools and DMH, BSEA# 2200773, 27 MSER 430 (Kantor Nir, October 13, 2021). As seen in Hamilton-Wenham Regional School District, BSEA #2104095C, 27 MSER 426 (Kantor Nir, September 22, 2021), the BSEA will maintain jurisdiction over the parties’ compliance with its rulings. The great difficulty in getting around a “Never Darken My Doorstep” clause in a settlement agreement is reiterated in Student v. Boston Public Schools, BSEA #2110952, 27 MSER 454 (Figueroa, November 4, 2021). The limitations on a parent’s ability to refuse a diploma were manifest in In Re: Wareham Public Schools, BSEA #2202891, 27 MSER 512 (Berman, December 17, 2021).
FISCAL YEAR 2021 BSEA STATISTICS
Before commenting on this quarter’s decisions, we offer an overview of the BSEA statistics for Fiscal Year 2021, 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.
Last fiscal year brought yet another example of the never-seen before Covid-19 effects, where for the first time in the BSEA’s existence, the number of rejected IEPs actually declined. That number has rebounded significantly, although it is still slightly below the pre-Covid-19 level:
FY 21 – 11,331
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 pre-Covid-19 years at around 500, FY20 saw a precipitous drop in the number of hearing requests. The number of hearing requests did not rebound in FY21—in fact it dropped further:
FY21 – 320
FY20 – 379
FY19 – 483
FY18 – 481
FY17 – 495
FY16 – 568
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, was the number of matters going to settlement conferences and the effectiveness of BSEA Director 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 53 of the cases that were filed for hearing in FY21 (as compared to 68 in FY20 cases), of which 49 were resolved the day of the settlement conference. Although the number of hearing requests filed in FY21 was significantly lower that FY20, the number of matters going to full hearings with written decisions increased:
FY21 – 24
FY20 – 19
FY19 – 19
FY18 – 13
FY17 – 22
FY16 – 23
Of the 19 decisions noted above, Parents fully prevailed in 5. Parents had counsel in 3 and an advocate in 2. The School Districts fully prevailed in 15. Parents had counsel in 5, an advocate in 1, and were pro se in 9. Four cases yielded mixed relief, with Parents having counsel in 1, an advocate in 1, and pro se in 2.
The BSEA conducted 127 facilitated IEP Team meetings, a significant increase from the 77 conducted in FY20.
BSEA mediators conducted 519 mediations in FY21, a decrease from the 573 conducted in FY20, and from 714 in pre-Covid-19 FY19.
A NOTE OF GRATITUDE
We take another opportunity to express immense gratitude to the BSEA. When we consider how various entities and individuals 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, has not missed a beat throughout these extraordinary times. 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 to students in the Commonwealth continued without pause. For this, our community is extremely grateful.
PARENTS SUCCESSFULLY ASSERT STAY PUT RIGHTS AGAINST PRIVATE SCHOOLS SEEKING TO TERMINATE STUDENTS
Student and Quincy Public Schools and The League School, BSEA# 2202940, 27 MSER 464 (Mitchell, November 18, 2021) involved a 21 year old diagnosed with Autism Spectrum Disorder with a severe level of affectation (Level 3), as well as an Intellectual Disability – Severe. The Student began attending League as a day student in July 2017. In November 2017, due to increasing behavioral concerns, Student began to attend League as a residential student. He was staffed 2:1 and all relevant parties agreed that he was not receiving FAPE as he was essentially confined to his residence. He had severe behavior incidents, including one involving permanent injury to a staff member. To effectuate another placement, Quincy, with Parents’ cooperation, sent over 20 packets to other programs. None of those programs would accept him or had openings. When League sought to terminate his placement, the hearing officer made two significant holdings. First, even if Student could not receive FAPE at League, it would remain his stay put placement until another placement could be identified. Second, examining the recommendations of a well-regarded independent consultant, the hearing officer held that Student could receive FAPE at League. The expansive authority of the BSEA to fashion appropriate programming for a student is manifest in the hearing officer’s order. The hearing officer ordered an array of services to be provided, funded by Quincy, including: at least weekly consults with a master’s or doctoral level BCBA to consult on the programming and train staff; engage Dr. Susan Manea of Integrated Center for Child Development (“ICCD”) to consult regularly with Student’s Team; and contract with ICCD for initially biweekly consultative services. In addition, she ordered: League to develop a compensatory service plan for the Student and Quincy to pay for additional staff; League and outside professionals and DDS Transition Coordinator to modify the Student’s day and residential programming; the Team to develop a long-term plan with the goals of having the Student spend his entire school day in the school building, fade his support and reintegrate into a small classroom environment; and an FBA to be conducted.
Chelmsford Public Schools and Swansea Wood School. BSEA# 2203132, 27 MSER 491 (Kantor Nir, December 2, 2021) involved a nineteen-year-old Student who carried diagnoses of Autism Spectrum Disorder and intellectual disability. He struggled with social emotional deficits intensified by his autism features: impulsivity, self-regulation deficits, defiance, destructive/aggressive responses to frustration and limit setting, and weak ADL skills. For seven years, he attended both Devereaux’s Therapeutic Day School and residential program. Since November 2020 until his hospitalization at St. Elizabeth’s in September 2021, he attended Swansea Woods School as a residential student. Swansea Woods was the only one of nine schools that received referral packets that accepted Student. The sped director testified that he was difficult to place because of his diagnosis of intellectual disability and autism; mental health issues; significant behaviors; need for one-to-one support; and his advanced age. Student struggled significantly at Swansea Woods with several serious behavioral incidents including eloping (and threatening to elope); grabbing/touching faces; getting too close to staff; hugging; poking; tying (and trying to tie) masks and clothing around his neck; spitting; hiding from staff; refusing to move or to follow directions; being nonresponsive when spoken to; refusing to complete ADLs; chewing non-edibles; destroying flip flops and masks; using suicidal words and statements, including reporting that “voices” were telling him to hurt himself; light head banging; pushing; kicking; and making verbal threats. He also exhibited hyper-sexualized behavior and refused medications on two occasions. Swansea Woods had to assign up to three staff to be with Student, resulting in inappropriate staffing for other students. His dysregulation also precipitated the dysregulation of other students.
Swansea Woods communicated to the district its intention to terminate Student. The sped director immediately began reaching out to potential placements. Subsequently, the district proposed, and the Parent accepted an IEP for the period August 3, 2021 to August 2, 2022 calling for residential placement at Swansea Woods. The N1 noted that Student had been accepted at Whitney Academy pending an opening there. When the Student was hospitalized at St. Elizabeth’s on September 15, 2021, Swansea Woods stated that Student would not be allowed to return. They did not offer Student any tutoring or other services during his hospitalization. No other program would accept Student, and Whitney Academy did not have a bed available.
At the time of the hearing, Student was still at St. Elizabeth’s because he had no place to go. Swansea Woods testified that it was not able to hire additional staff to service Student, as it already had nine full-time residential positions and three clinical positions open. The hearing officer reiterated the long-standing principle that stay put applies to disabled students whether they are placed in-district or in publicly funded out-of-district placements. “There are no qualifiers. [The regulatory language] does not distinguish between types of placement: public or private; day or residential; homebased or center-based.” In Re: Northampton Pub. Sch. & Lolani, BSEA # 04-0359, 9 MSER 397 (Byrne, 2003) (finding that to “fail to extend the same measure of ‘stay-put’ protection to an eligible student who, because of the nature or extent of her disability cannot be educated within the public school system, as is without question enjoyed by students attending public school programs, would be to fail to deliver on the IDEA’s promise of equal education for all students with disabilities”); see also In Re: Framingham Pub. Sch., Guild for Human Serv., Inc. and the Dep’t of Dev. Serv., BSEA # 1808824, 24 MSER 68 (Putney-Yaceshyn, 2018) (finding that the regulations governing private special education schools “relate back to the general special education regulations found at 603 CMR § 28.00, which includes the ‘stayput’ provision and do [not] provide for any exemption for publicly placed private school students”). This does not bar a publicly funded program from terminating a student appropriately. 603 CMR 18.05(7)(b). Massachusetts regulations allow private special education schools to terminate students for safety concerns but condition such termination on providing the public school sufficient time to search for an alternative placement and assume responsibility for the student.
The present case did not involve a disciplinary matter so the provision providing for removal to an interim alternative educational setting (IAES) at St. Elizabeth’s was not applicable. The real issue was whether Swansea Woods was Student’s stay put placement until he could begin attending Whitney Academy. Embedded in this issue is the question whether an exception to the stay put provision exists in this matter; that is whether maintaining Student’s placement at Swansea Wood implicates the safety of Student and others. If the hearing officer were to conclude that Swansea Woods was not Student’s stay put placement, then she must determine what constitutes such placement.
The hearing officer held that Swansea Woods was the stay put placement until another placement could be identified. Student was there pursuant to two accepted IEPs. The hearing officer found Swansea Wood’s attempts to terminate Student’s placement were “confusing and flawed.” In accepting Student, Swansea made a commitment to maintain Student until an alternative placement could be found if Swansea Woods could no longer serve him. The hearing officer found that the record was replete with instances where Swansea Woods failed to pursue options in serving Student, including failing to implement his IEP which called for 1:1 support, failing to inform the District of serious incidents or to propose to reassess Student or reconvene the Team, and failing to explore the gamut of supplementary aids and services. Student’s profile and issues were not so different than his peers at Swansea Woods. They also failed to follow the termination procedures or meet the criteria for emergency termination. Lastly, St. Elizabeth’s could not be entertained as a “placement” for Student, as it is a hospital, not an educational placement. Even though Swansea Woods filled Student’s spot, the hearing officer ordered them to reenroll Student immediately. In addition, Swansea Woods was ordered to reconvene the IEP team within seven calendar days to identify the modifications and services needed for Student. Chelmsford was to fund any additional modifications.
We applaud the decisions of the hearing officers in these stay put cases. On first blush, one is sympathetic to a private school having to keep a challenging student against its will. However, along with the many benefits of accepting public funds for educating students with special needs, come certain obligations. One of those obligations is to consider and implement, without the necessity of a hearing officer ordering it, additional programming and services to make the placement workable—at least until an alternative placement can be found. While it may be seen as laudable to have a school district fund an outside placement, send packets out to other programs, and stand ready to fund alternate placements, they must monitor private placements more closely and offer additional expertise and funding for services when necessary to maintain those placements.
In Re: Woburn Public Schools, BSEA# 2203102, 27 MSER 449 (November 3, 2021) involved a 14 year old boy with an intellectual disability. The District proposed, and Parent fully accepted, an IEP for the period May 15, 2018 to May 14, 2019 with placement at the Language Based Learning Disabilities Program (LEAP), a partial inclusion program, at the Altavesta School in Woburn. In March 2019, the District proposed an IEP for the period March 20, 2019 to March 19, 2020 with placement in LEAP through June 2019 and then in a substantially separate classroom at the RISE I Program at Daniel L. Joyce Middle School. Via an N1, the District stated that the LEAP Program at the middle school was not appropriate because of the type of methodology and individualization that Student required. On May 15, 2019, Parents refused placement at RISE I. In June 2019, the District issued an Amendment to the IEP for the period 03/20/2019 to 3/19/2020, in part, acknowledging Parents’ invocation of stay put rights to Student’s placement in the LEAP Program. On October 18, 2019, the District proposed placement at the RISE II Program at Daniel L. Joyce Middle School. The N1 stated, in part, “The team agreed that RISE I was not an appropriate placement for [Student] and suggested that he be placed in RISE [II] which would continue to allow him to attend general education Social Studies and Science classes with supports and a smaller whole language and math class. It is the belief of the school district that this program will also be a better social fit for [Student] than RISE [I].” Parent rejected RISE II. In January 2020, the District proposed a hybrid program with
RISE II and LEAP. Following a subsequent meeting on January 29, 2020, Parents continued to reject RISE II and the hybrid program. In February 2020, the District issued an N1 maintaining that RISE II was the most appropriate placement for Student. On October 19, 2020, the District proposed a neuropsychological assessment which Parents rejected. On December 22, 2020, the District proposed an extended evaluation of Student at RISE I. Parents agreed, and Student completed the extended evaluation on March 15, 2021. The Team convened on March 19, 2021 to review the results of the extended evaluation, and the Team proposed an IEP for the period 12/14/2020 to 12/13/2021 with placement in the substantially separate classroom in RISE I at Daniel L. Joyce Middle School for the remainder of 2019-2020 and for 2020-2021 school years. On May 8, 2021, Parents rejected the placement and filed a Request for Hearing on May 27, 2021 (BSEA #2110850).
On August 24, 2021 the parties resolved that hearing request (BSEA #2110850) via a fully executed Settlement Agreement (the Settlement Agreement). Both parties were represented by counsel. The Settlement Agreement provided that the district would administratively develop an IEP after the Student was accepted at one of the four schools to which referral packets had been sent and the Parent would promptly accept that IEP. The Settlement Agreement contained a standard clause that if there was a material change in the Student’s disability or he was involuntarily terminated from the agreed-upon placement, the Team would reconvene and offer a new IEP that would be the stay put placement. Concerning the IEP after the expiration of the agreement, stay put would be for whatever program the district proposed.
Although referral packets were sent to multiple programs, only SEEM Collaborative accepted Student. On August 27, 2021, the District proposed, pursuant to the Settlement Agreement, an administrative IEP for the period 9/1/2021 to 8/31/2022 with placement at SEEM. Following a tour of SEEM on September 2, 2021, Parents informed the District that they would not be enrolling Student at SEEM as it was inappropriate and asked to brainstorm additional programs. The District proposed placement in its RISE programs. Subsequently, Student began attending RISE I as no other placement was identified for him. Student struggled behaviorally at RISE I often leaving the classroom without permission. On October 14, 2021, Parents filed the instant case arguing that LEAP was Student’s stay put placement as it was the placement identified in Student’s last accepted IEP and it is “the last placement Student was actually in.” On October 25, 2021, the District responded, asserting that the Student’s stay put placement was SEEM Collaborative by virtue of the Settlement Agreement.
Stay put is not always a simple matter of looking at what was provided in the last agreed upon IEP. Often, an assessment of the particular circumstances is required. One factor is what the “operative” placement is—the IEP that was actually in place when the dispute arose. Generally, when the parties agree that a particular placement is only temporary, stay put right do not attach.
Here the candidates for the stay put placement were: the LEAP Program; the RISE I program where Student participated in an extended evaluation in December 2020/January 2021 and which he began again attending in September 2021; or the SEEM Collaborative.
The hearing officer ruled that LEAP was the stay put placement. The hearing officer rejected SEEM as the stay put placement because it would only be so if Student had attended SEEM. However, Student never attended SEEM and there was never an accepted IEP for SEEM. SEEM could not therefore be considered the operative placement. In addition, the Settlement Agreement clearly stated that the Parents did not have stay put rights at SEEM for the 2023-2024 school year. In a bit of a stretch, the hearing officer found that, at best SEEM was to be a “temporary” placement for the 2021-2022 and 2022-2023 school years. Placement at SEEM would not maintain the Student’s status quo—it would significantly alter it since Student had never attended there.
Rise I was not the stay put placement either. As an extended evaluation, stay put does not attach (see 603 CMR 28.05(2)(b)(5)). No IEP or placement page identified RISE I as the agreed upon placement. All agreed that Student’s attendance there was temporary. LEAP was the placement the parties agreed upon via the 5/15/18 to 5/14/19 IEP and Parents had asserted their stay put rights to that placement since May 2019. Even though the Parents did express dissatisfaction with LEAP, that was irrelevant to the issue of stay put.
THE BSEA MAINTAINS JURISDICTION TO MONITOR COMPLIANCE WITH ITS EARLIER ORDER REALTING TO EVALUATIONS OF THE STUDENT
Hamilton-Wenham Regional School District, BSEA #2104095C, 27 MSER 426 (Kantor Nir, September 22, 2021) arose from the dispute over the parties’ compliance with the hearing officer’s decision in Hamilton-Wenham Regional School District #2104095, 27 MSER 287 (Kantor Nir, June 22, 2021). The earlier case involved substituted consent for a three-year evaluation. The tenth grade Student had not attended District schools since fourth grade, when he began attending a number of private placements in addition to being homeschooled at various points. In 2016, Parents and District agreed to complete an independent educational evaluation, which led to a disputed diagnosis. In 2017, District referred Student for various assessments, but Parents refused to consent to the District’s request to perform certain evaluations The hearing officer ordered substituted consent resulting in Student attending Dearborn STEP for an extended evaluation. Parents again disputed the resulting diagnoses. The hearing officer provided substituted consent for the evaluation. The District had identified appropriate areas for assessment, the proposed evaluators were qualified, Student’s PTSD did not negate the District’s right or responsibility to complete the evaluation process, and, most importantly, Student would be denied FAPE without the re-evaluation. The hearing officer noted that 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 Student’s needs as well as the Parents’ denial of FAPE claims as also necessitating a full re-evaluation was necessary and appropriate.
In the subsequent action, both parties moved for sanctions for willful interference with the implementation of the BSEA’s order. The District alleged that Parents failed to produce Student for evaluation while undergoing a private evaluation. The District sought the immediate production of private evaluation results as well as sanctions if the private evaluation hindered the District’s ability to evaluate Student. Parents maintained that the District failed to reach out in a timely manner to conduct the evaluation.
The hearing officer held that parents have an unfettered right to privately evaluate the Student and could not be compelled to turn over the evaluation report to a district. If they do, the team must convene within 10 school days of its production. The District was obligated to evaluate Student within 30 days of the order, analogizing it to the same time requirement after parents’ consent to an evaluation. The District would not have to evaluate if Parents fail to produce Student. The hearing officer also decided to retain jurisdiction over the matter to ensure proper compliance with its orders.
PARENTS WERE UNABLE TO MEET THE CRITERIA FOR THE “GOD FORBID” EXCEPTION TO A “NEVER DARKEN MY DOORSTEP” CLAUSE
Student v. Boston Public Schools, BSEA #2110952, 27 MSER 454 (Figueroa, November 4, 2021) involved a twenty-one-year-old resident of Boston who was diagnosed with Autism Spectrum Disorder (ASD), Attention Deficit Hyperactivity Disorder-Inattentive Type (ADHD), Obsessive Compulsive Disorder (OCD), Unspecified Depressive Disorder, and Specific Learning Disability in reading and written expression. At the time of the hearing, Student was attending the Ivy Street School pursuant to an agreement reached between the Parties during a January 2020 Settlement Conference where Parents were represented by an attorney. That agreement provided that in exchange for the funding of Ivy Street, Parent and Student agreed to waive any and all additional services by Boston “including compensatory services, additional extended school year services, general education services, special education services and/ or transition services”, agreeing that Boston’s funding of this placement through June 30, 2021, fulfilled Boston’s entire obligation to provide Student with a FAPE and Boston would no longer have to provide services or funding for Student. This “never darken my door step” (NDMD) provision had one escape clause: an unforeseen significant medical change which caused a substantial and material change in the nature of Student’s disability. The Agreement specifically provided that an exacerbation of current conditions would not constitute a material change in the nature of the Student’s disability. The Student experienced difficulties with the remote and hybrid learning because of the COVID-19 pandemic and in March/April 2021, he underwent an updated neuropsychological evaluation. That evaluation found that Student’s experiences and lack of participation in his educational programming during the pandemic were responsible for the “accentuation” of Student’s depressive nature and psychotic features. The evaluation stated that if the depression subsided, Student’s psychotic features would also subside.
The hearing officer’s decision reaffirmed the longstanding principle that such clauses are enforceable. See In Re: Longmeadow Public Schools, 14 MSER 249 (Crane, 2008). In the instant case, Parent argued that Student had undergone a material change, vitiating the NDMD clause. Although Covid was unforeseen, the relevant clause related to an unforeseen and significant change in the Student’s disabilities. Student’s symptoms, including his OCD, may have increased during the pandemic, but not one of the symptoms mentioned by Parent’s expert was a new medical condition, nor did the evaluator identify any of Student’s symptoms as new in his report. The hearing request was dismissed with prejudice but the hearing officer noted there was a possible compensatory services claim against Ivy Street.
This decision offers another cautionary tale about NDMD clauses. While they may be worthwhile in certain cases, do not doubt that are enforceable and not easily voided.
BLOCKING DISCOVERY OF CLINICIAN’S NOTES
In Re: Westfield Public Schools and DMH, BSEA# 2200773, 27 MSER 430 (Kantor Nir, October 13, 2021) addressed the limitations on what a school district can discover from a student’s records by a school district. The Student involved was a 14-year-old boy, adopted at a young age, who carried multiple diagnoses, including PTSD, Reactive Attachment Disorder, ADHD, anxiety disorder, and mood disorder. He also had learning and cognitive disabilities, and his adaptive functioning was limited. He had been eligible for DMH services for several years. After a hospitalization, Student was placed at the Northampton Center for Children and Families (“NCCF”), a DMH-funded residential treatment center part of the Cutchins Program for Children and Families. He was residing there at the time of the hearing. Parents filed the hearing request, alleging, in part, that the District’s proposed placement at a private day program failed to offer Student a FAPE and that Student required placement in a residential program. In response, the District asserted that DMH is responsible for addressing Student’s mental health needs, which are distinct and separate from his learning needs.
On September 20, 2021, the Hearing Officer joined DMH as a necessary party to this dispute. The BSEA, at the District’s request, issued a subpoena for documents and testimony from Cutchins and their clinicians. Cutchins moved to quash the subpoenas on various grounds, including the burden they imposed on a non-profit agency operating with limited staff during the pandemic. The hearing officer quashed the subpoena for one of the clinicians because that clinician’s testimony would not offer anything that could not otherwise be obtained from the other subpoenaed clinician. Regarding documents, the BSEA allowed the production of (i) treatment plans; (ii) safety plans; (iii) occupational therapy records; (iv) incident reports; and (v) progress reviews. However, the hearing officer found that Cutchins’s objection to providing the District with the “psychotherapy and /or clinical notes ¼ and any and all clinical information obtained through individual, group and family therapy related to and referencing [Student]” raises valid concerns regarding the potential damage which such production could cause the therapeutic relationship.
Cutchins’s position was buttressed by the limitations on access to psychotherapy notes imposed by the Health Insurance Portability and Accountability Act (HIPPAA), 45 CFR §164.524 (a)(1) (i) and Massachusetts statutes protecting the disclosure of psychotherapy and social work records. While an exception is made for court proceedings where the mental or emotional condition is an element of a claim or defense, a balance between these interests must be struck. Significantly, the Parents did not object to the subpoenas and waived their right to participate in the hearing on the motions. Therefore, the hearing officer inferred that they were willing to waive the relevant privileges. The hearing officer did, in our opinion, a fine job in balancing the competing interests involved. She found the records to be highly relevant and ordered them to be produced with the following exceptions: any and all clinical information obtained through individual, group and family therapy related to and referencing [Student]” be produced for an in-camera review, during which the hearing officer would determine which, if any, of these records should be disclosed. Such notes were ordered redacted of references to individuals other than Student and his family and shall be limited to the time period from September 1, 2020 through the present. She also found she had no authority to order the production of psychotherapy notes, because HIPPA denies access to those notes even to the patient. She noted that the District could pursue those in court if they wished. In further balancing the interests, the hearing office ordered Cutchins to provide to her, for in-camera review, any existing summaries of psychotherapy notes, with any references to other students redacted. Since clinicians will not produce such records without either the patient’s consent or an order to do so, if Parents object to the production of certain records, they should instruct the clinicians not to produce them and made their voice heard as to why the records are not relevant or necessary in light of various interests involved.
PARENT WAS UNSUCCESSFUL IN REFUSING THE DIPLOMA
In Re: Wareham Public Schools, BSEA #2202891, 27 MSER 512 (Berman, December 17, 2021) involved a twenty-one-year-old man with Autism Spectrum Disorder and cognitive disabilities that impaired his skills in the areas of social communication, pragmatic language, self-advocacy, and anxiety management. Student met the coursework and MCAS requirements for graduation from Wareham High School, and Parent initially accepted the diploma in June 2019. However, over the summer Parent rescinded that acceptance and filed for hearing.
Wareham Public Schools agreed to provide transition services to Student for the 2019-2020 and 2020-2021 school years, consisting of placement in Project Forward, a two-year transitional program at Cape Cod Community College (CCCC), as well as certain in-district services. In or about May 2021, Wareham notified Parent and Student that it would be terminating Student’s special education eligibility. Parent rejected the proposed termination and, on August 8, 2021, filed a hearing request with the Bureau of Special Education Appeals (BSEA) in which she sought extension of Student’s special education eligibility until Student reaches the age of 22, as well as compensatory services corresponding to certain services that were allegedly missed during the past two school years.
Student was very successful during both years at Project Forward and all agreed that Student attended all available sessions, worked diligently, got along well with teachers and peers, and improved his skills. In May 2021, Student successfully completed the two year Project Forward program and received a certificate. Both DDS and the Massachusetts Rehabilitation Commission had found Student eligible, and the Student would begin receiving services upon his termination of special education services. At the May 13, 2021 Team meeting, the service providers opined that Student had made “tremendous progress,” had met or exceeded his IEP goals and was ready to accept his diploma, exit special education and move on to adult services from DDS and MRC. Parent disagreed, expressing concerns about Student’s continued areas of vulnerability, including internet safety (e.g., use of dating apps), personal health management, and home skills. Wareham issued an N1 stating that the District would terminate services as of June 4, 2021. The Parent rejected this and Student continued to receive services pursuant to his stay put rights. Wareham also offered to provide Covid-19 Compensatory Services because of missed vocational opportunities.
The hearing officer stated that the question of whether the Student can be graduated depended on two things: first, whether Wareham fulfilled the procedural requirements for terminating services and, second, whether the post-high school transition services that Wareham provided to Student were reasonably calculated to provide him with a FAPE. To graduate from high school, students eligible for special education, like typical students, must meet the local graduation requirements, which usually entails amassing the requisite credits and passing MCAS. There was no dispute about that, or that sufficient notice of the District’s intention to graduate Student in the instant case. However, for eligible students, they cannot be required to graduate if they did not receive a FAPE. See Doe v. Marlborough Public Schools, 54 IDELR 283 (D. Mass. 2010) and DESE’s publication, Administrative Advisory SPED 2018-2, Secondary Transition Services and Graduation with a High School Diploma. (March 2018).
Here, there was no claim that the two years of transition services were inappropriate or, with the exception of a small amount of speech services addressed by compensatory services, not fully implemented. The goals and benchmarks for the transition IEPs were “appropriately ambitious in light of [Student’s] circumstances” (using the language of the Supreme Court’s recent unanimous decision on what constitutes a FAPE—Endrew F. v. Douglas Cty. Reg’l Sch. Dist., 137 S. Ct. 988, 1001 (2017)) and Student’s success was uncontested and supported by the evidence, having earned top grades of “competent” or “proficient” in nearly all of the many areas assessed by Project Forward. His job coach testified that Student had outgrown the program.
The crux of the Parent’s claim for continued eligibility was that Student still had areas of weaknesses and new goals should be developed. As is too often the case in proceedings before the BSEA, the Parent had no expert supporting her position. The hearing officer opined that the services the Student would get from adult agencies, like DDS and MRC, would be no different than those the Student was seeking from the district at this point. This ignores the reality of the wide gap between what school districts are obligated to provide and have the resources to provide and what adult agencies offer. However, with no expert support or specification that the desired services were only available from a school district, the Parent had nothing to counter the District’s position. While no one can suggest school districts are required to remediate all of a student’s disability-related challenges before graduation, holding that school districts are absolved of continuing obligation to special needs students once they have amassed sufficient credits and have satisfied, by passing or waiver, the MCAS requirements, goes against the underpinnings of IDEA in two significant ways. First, arguably the one area where the law has gotten stronger on the side of students with disabilities in the last twenty years has been in the area of transition services. When the IDEA was re-authorized in 2004, the obligations of school districts to provide transition services and planning was significantly increased. This resulted in an explosion of myriad public and private transition programs with the intended result of better preparing students with disabilities for post-secondary school life. Second, the implication of this decision is the exaltation of academic achievement over other areas of need that IDEA explicitly obligates school districts to address. To hold that a student who has amassed sufficient academic credits, satisfied MCAS and had one satisfactory year of services is no longer eligible for special education services runs significantly counter to the purpose of IDEA and related laws and regulations. n