Commentary on Massachusetts Special Education Decisions: 1st Quarter 2022, by Alicia M.P. Warren and Daniel T.S. Heffernan:

July 26, 2022


The volume of this quarter’s opinions was comparatively light. It includes only two decisions on full hearings. Westfield Public Schools and Massachusetts Department of Mental Health, BSEA #2200773, 28 MSER 8 (Putney‑Yaceshyn, January 28, 2022) addressed a parent’s unsuccessful attempt to move her son from a specialized day placement funded by the district and a state agency funded group home to a single integrated residential therapeutic school. Mendon‑Upton Regional School District, BSEA #2203125, 28 MSER 40 (Mitchell, March 23, 2022) involved a detailed analysis upholding the district’s repeated denials of eligibility. This quarter’s rulings on motions included rebuffing a district’s attempt at reconsideration of an earlier decision, packaged as a “motion for clarification” in Quincy Public Schools and The League School, BSEA #2202940, 28 MSER 18 (Mitchell, January 27, 2022). The hearing officer in Blackstone Valley Regional Vocational Technical School, BSEA #2205427, 28 MSER 2 (Kantor Nir, January 21, 2022) held that the manifestation determination review requirement applies to students under Section 504 plans and those must be conducted before the tenth day of prior and current suspension terms combined. The prior vocational school was joined to the proceedings in Arlington Public Schools and Vaugh, BSEA #2203554 and #2202375, 28 MSER 25 (Reichbach, February 22, 2022) because their possible failing may be a reason why Arlington Public Schools might be found to have failed to provide a FAPE. The hearing officer denied the parents’ motion to amend their response to the hearing request in Easthampton Public Schools, BSEA #2203513, 28 MSER 35 (Kantor Nir, March 9, 2022) because those claims would be barred by the statute of limitations. Newburyport Public Schools, BSEA #2205014, 28 MSER 38 (Putney‑Yaceshyn, March 15, 2022) has yet another hearing officer refusing to weigh in about compliance with settlement and mediated agreements.

Parents Are Unsuccessful In Their Bid For A Single Combined Residential Therapeutic Placement

The parents in Westfield Public Schools and Massachusetts Department of Mental Health, BSEA #2200773, 28 MSER 8 (Putney‑Yaceshyn, January 28, 2022) found themselves caught up in the same frustrating internecine battle amongst school districts and the alphabet soup of state agencies over who is responsible for a student’s residential program. The student involved here was a fifteen‑year‑old boy diagnosed with language‑based learning disorder (Reading Disorder, Disorder of Written Expression, and Mathematics Disorder), ADHD, Reactive Attachment Disorder, Post Traumatic Stress Disorder, Generalized Anxiety Disorder (with features of OCD), and Disruptive Mood Dysregulation Disorder. No party disagreed about the Student’s need for residential therapeutic services, but as is often the situation in these disputed cases, Westfield maintained that such a placement was not necessary for “educational purposes.” This game of hot potato can be consequential for two reasons. First, the rights accorded students when residential services are provided by the school district are broader and stronger than when they flow from DMH. Second, and more significant here, was the fact that while DMH was providing a group home (Cutchins‑‑a DMH therapeutic group home facility) and Westfield was providing a specialized day placement (NEARI‑‑the New England Adolescent Research Institute), the parents sought a single, 24/7, combined residential therapeutic placement, such as a residential therapeutic school. To achieve that, the Parents carried the burden of establishing that the student requires such programming for “educational purposes” in an integrated single placement, or have DMH help fund the residential school. While DMH does contribute to some residential school placements, it is extremely difficult to have a hearing officer compel DMH to cost share such a placement.

The Student was placed at Cutchins due to safety concerns in the family home and reportedly did well there. Numerous credible staff from NEARI and Cutchins testified about the student’s progress at their respective programs. While both Cutchins and NEARI staff expressed some concerns about the Student transitioning to their respective adolescent and high school programs, both believed their programming would meet his needs. The parents’ highly qualified expert, Dr. Jeffrey Pickar, opined that the student needed placement in an integrated school and residential program. However, the basis of his opinion was undermined by several factors. First, Dr. Pickar “stopped short” of stating that a program with a separate school and residential portion would not be appropriate for the Student. This was fatal to the Parents’ burden to establish in the first instance that the current programming for the Student was inadequate. Second, Dr. Pickar did not observe the Student at either Cutchins or NEARI. Third, Dr. Pickar’s recommendation for an integrated residential school was based, in part, on the student’s significant struggles with ADLs. However, this was directly contradicted by specific examples of progress in that area by Cutchins witnesses, despite their admitting that Cutchins was not meeting all of the student’s needs.

One additional factor was that several witnesses testified about the importance of the Student being in close contact with his family and that the desired residential school was ninety minutes away. Cutchins, on the other hand, was only thirty‑five minutes away.

The hearing officer held that Westfield fulfilled its obligation to provide a FAPE in the least restrictive environment and the Student does not require placement, for FAPE purposes, in a residential school.

District’s Finding of Ineligibility Upheld

Mendon‑Upton Regional School District, BSEA #2203125, 28 MSER 40 (Mitchell, March 23, 2022) involved an exhaustive analysis upholding the district’s denial of eligibility for a five‑year‑old preschooler transitioning from a private school. The Parents maintained that the Student had ADHD and social‑emotional deficits which necessitated an IEP. The district conducted extensive initial evaluations and observations and agreed to conduct additional evaluations. In all, the Team deemed the Student ineligible three times. The parents’ private neuropsychologist reviewed the district’s evaluations and performed standardized assessments but failed to speak with anyone from the Student’s private preschool or even review any of her preschool records. She failed to identify a specific disability in her findings or make any recommendations for specialized instruction, programming, or direct related services. Parents were then in an untenable situation of disagreeing with the Team determination as well as their own expert. The totality of the information available to the Team did not support a finding that Student could not make effective progress without specially designed instruction and therefore the hearing officer upheld the denial of eligibility.

No Avenue At The BSEA To “Clarify” An Order

Quincy sought clarification in Student and Quincy Public Schools and The League School, BSEA #2202940, 28 MSER 18 (Mitchell, January 27, 2022) of Hearing Officer Mitchell’s order (Student and Quincy Public Schools and The League School, BSEA #2202940, 27 MSER 464, (Mitchell, November 18, 2021)). In the earlier ruling, the hearing officer denied The League School’s efforts to terminate the Student. First, she held that even if the Student could not receive a 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 a FAPE at League. The expansive authority of the BSEA to fashion appropriate programming for a student was manifest in the hearing officer’s earlier 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 Board Certified Behavior Analyst (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 the Massachusetts Department of Development Service 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.

In the current action, The League School sought “clarification of the earlier order.” The hearing officer viewed it as a veiled attempt to have her reconsider her order and noted that there was no provision for reconsideration in the BSEA rules. The sole remedy available to aggrieved parties from a BSEA decision is an appeal to state or federal court. The hearing officer then referenced certain portions of her order to respond to the specific “clarification” sought, noting that her original ruling was perfectly clear. As a practical matter, this case shows the difficulty of obtaining compliance with a hearing officer’s orders regarding changes to a school’s program. At the time of the motion for clarification, League had failed to implement several discrete programmatic changes in accordance with the hearing officer’s earlier order. The hearing officer reminded the parties that BSEA decisions must be implemented immediately.

Student Under A 504 Must Be Given A Manifestation Determination Review Prior To Suspension

In ordering summary judgment against the district, the hearing officer in Blackstone Valley Regional Vocational Technical School, BSEA #2205427, 28 MSER 2 (Kantor Nir, January 21, 2022) found that the district failed to conduct a manifestation determination review for the eleventh‑grade Student under a Section 504 accommodation plan relating to her Post‑Traumatic Stress Disorder (PTSD). In November 2021, the Student served a ten‑day suspension. The Student kicked another student’s crutches on December 10, 2021 and had a disciplinary hearing on January 6, 2021. On January 7, 2022, the District issued, along with a referral for a special education evaluation, a notice that the District intended to suspend Student for ten days as follows: January 10 through January 14, January 18 through January 21, and January 24. Student began serving her suspension on January 10, 2022. On January 13, 2022, the District invited Student and Parent to a Section 504 Meeting to be held on January 18, 2022. The purpose of the meeting was identified as “Manifestation/Determination/Resolution.” Members of the 504 Team convened on January 18, 2022 for a manifestation determination/resolution. Parent and Student were in attendance. Student’s behavior was found to be a manifestation of her disability, PTSD, but not a direct result of the District’s failure to implement her Section 504 Accommodation Plan.

Section 504 deems suspensions longer than ten school days to be a “significant change of placement” which triggers a district’s duty to conduct a reevaluation. While the term “manifestation determination” does not appear in the regulatory language of Section 504, OCR and most courts interpret Section 504 as requiring a manifestation determination review in connection with discipline that constitutes a “significant change in placement.” The District maintained that they could conduct the manifestation determination any time before the tenth day of the suspension and therefore a review on January 18, 2022 would suffice. However, the hearing officer held that since the student had already served a ten‑day suspension earlier in the school year, the District had no leeway in conducting the review for a suspension that would cumulatively exceed the ten days.

We applaud the hearing officer’s ruling that manifestation determinations are required under Section 504 and that prior suspensions should count cumulatively towards the ten‑day rule.

Motions To Amend A Hearing Request Response Generally Allowed But Here Denied On Statute Of Limitations Grounds

In Easthampton Public Schools, BSEA #2203513, 28 MSER 35 (Kantor Nir, March 9, 2022), the Parent sought to amend her response to a hearing request shortly before the hearing to obtain reimbursement for the cost of two private evaluations. 20 USC 1415(c)(2)(E)(i), provides for the allowance of amendments of hearing requests made no later than five days before the due process hearing. BSEA Hearing Rule I(G) resets timelines for the hearing process as if the amendment were a new request. While the BSEA hearing rules do not specifically address amending responses to hearing requests, the hearing officer held such amendments are permitted after noting that Rule 15 of the Federal Rules of Civil Procedure provides for the amendment of “pleadings” and that the court “should freely” allow those when justice requires. While holding that amendment of a hearing request response could be made, here such a request would be denied because it was futile. While the Massachusetts and Federal Rules of Civil Procedures hold that amendments relate back to the date of the original filing, BSEA Hearing Rule 1(G) provides that when an amendment merely clarifies issues raised in the initial hearing request, the initial filing date is controlling for statute of limitations purposes. However, for new issues, the date of the amendment is controlling. Here, the issues raised by the Parent’s amendment were new ones and essentially distinct counter‑claims, and because they relate to matters that arose more than two years prior to the filing of the amendment, they were time‑barred and the motion to amend was denied as futile.

Another Hearing Officer Finds The BSEA Lacks Jurisdiction To Interpret Or Enforce Settlement And Mediated Agreements

Newburyport Public Schools, BSEA #2205014, 28 MSER 38 (Putney‑Yaceshyn, March 15, 2022) involved a motion to dismiss the Parents’ hearing request relating in large part to the District’s purported breach of two settlement agreements and a mediated agreement.

The hearing officer noted that the IDEA and related regulations do not specifically address the authority of hearing officers to approve or review private settlement agreements. The majority of the BSEA decisions addressing this issue in recent years have found that the BSEA does not have such authority. Hearing Officer Putney‑Yacheshyn followed this majority and dismissed the Parents’ claims relating to all of these agreements. The rationale given for this and similar decisions are essentially twofold. First, the BSEA is a forum of limited jurisdiction and should not expand that jurisdiction beyond what is explicitly provided for; and second, courts, and not the BSEA, have the expertise to apply contract law and determine such things as the intent of the parties. We respectfully disagree. First, allegations relating to a district’s failure to abide by an agreement often impact a student’s FAPE and ensuring that it is provided is the raison d’etre of the BSEA. Determining obligations under an IEP is essentially a breach of contract analysis. Second, the BSEA has undeniably greater expertise than state superior and federal district courts in addressing issues relating to the provision of special education. In addition, the BSEA system is intentionally much more expeditious, accessible and inexpensive than the state and federal court systems, and Parents should not be denied this avenue for achieving a FAPE for their child because of how that claim is labeled.

Motion To Join DMH And Vocational School Allowed

Arlington Public Schools sought to join Minuteman Regional Vocational Technical High School (“Minuteman”) and the Massachusetts Department (DMH) in Arlington Public Schools and Vaugh, BSEA #2203554 and #2202375, 28 MSER 25 (Reichbach, February 22, 2022). Parent filed against Arlington seeking placement for Student in a residential therapeutic school such as JRI Meadowridge School and for compensatory services for failure to provide a FAPE to Student. Student, a sixteen‑year‑old young man with PTSD, ADHD, depression and aggression, enrolled in Arlington on April 27, 2021 after attending Minuteman for the 2019‑2020 and part of the 2020‑2021 school year. Arlington found the Student eligible for services on May 27, 2021. The hearing officer allowed the joinder of both parties. As to DMH, she found that she could order a remedy requiring DMH to provide certain services and as such, they should not be dismissed at this stage. Regarding Minuteman, interestingly, Parent clarified that she was not seeking any compensatory services before April 28, 2021 and therefore joinder would be moot. However, the hearing officer held that allegations surrounding Arlington’s failure to provide a FAPE to the Student may have been impacted by Minuteman’s failure to evaluate him, even after he enrolled in Arlington. While the possibility existed at this early stage of the litigation that Minuteman may be required to at least share in providing the relief ordered, their joinder was warranted.

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