INTRODUCTION

The BSEA had a relatively busy second quarter of 2022, issuing three decisions and fifteen rulings. Of the three decisions, two of them, Belchertown and Swansea, centered on a student’s entitlement to a free appropriate education (FAPE); the remaining decision, Easthampton, considered the student’s entitlement to an independent educational evaluation (IEE). Parents succeeded in two, Swansea and Easthampton, tipping the balance in their favor, at least this time. The rulings covered an array of issues, with a number of cases involving joinder (two Lexington rulings, Lynn, and Waltham), the jurisdictional reach of the BSEA (Marshfield and two Springfield rulings), and resolution meetings (two Springfield  rulings) most prevalent. The commentators have discussed only the most significant cases.

Parents Lose Battle of the Experts and Lose Case for Transition Program

Belchertown Public Schools, BSEA No. 2112052, 28 MSER 118 (Putney‑Yaceshyn, May 31, 2022) concerned the appropriateness of Belchertown’s transition program for a nineteen‑year‑old woman with a complex profile marked by global developmental delays. The student’s musical passion and skills were foundational to her wellbeing and learning, and they formed the basis of her post‑secondary vision, as articulated in her IEP’s Transition Planning Form. For the three IEP periods at issue in this case, the student attended iterations of Belchertown’s Transitions Program (“Transitions”), a classroom in which she received 1:1 support, social skills services, physical therapy, and speech and language therapy. The program also provided vocational and community experiences, some of which were music‑based. For the final IEP period at issue, Belchertown also proposed that the student participate in a concurrent enrollment program at Holyoke Community College, through the Massachusetts Inclusive Concurrent Enrollment Initiative (MAICEI). The student’s parents rejected the IEPs due to her lack of progress in Transitions, specifically, and the District’s failure to provide her with a cohesive, highly motivating music‑related program, generally. They initiated discussions with the IEP Team around a referral to Berkshire Hills Music Academy (BHMA), which Belchertown refused.

The Hearing Officer deemed Belchertown’s programs appropriate. At nearly every turn, the Hearing Officer credited Belchertown’s witnesses, many of whom had worked with the student for a number of years, over the parents’ expert neuropsychologist and speech and language pathologist, neither who had observed the student within Transitions. The Hearing Officer also credited Belchertown’s independent consultant, who had conducted a program review, including observations at Transitions and its associated community‑based and vocational components. From the Hearing Officer’s recitation of the facts and resulting analysis, it appears that the parents’ experts were unable to reach any conclusion regarding the student’s progress within Transitions, and, therefore, the appropriateness of Transitions itself—a necessary component of any successful challenge to a district’s program. On the other hand, according to the Hearing Officer, Belchertown’s teachers and service providers all testified that the student had made meaningful, albeit slow, progress within Transitions. While Belchertown’s independent consultant had opined that the way in which the student’s IEP Team drafted goals and collected data rendered it “almost impossible” to monitor the student’s progress, the Hearing Officer determined that this testimony was “not definitive” of a lack of progress. Even though Belchertown’s own expert elicited some serious questions relative to the student’s progress, the parents bore the ultimate burden of showing the lack thereof. They failed to do so.

In addition to losing the battle of the experts, the Hearing Officer dealt an additional blow to the parents’ case with respect to the final IEP period at issue, which included a proposal for a hybrid program consisting of Transitions and MAICEI. According to record evidence, MACEI would have provided the student with some additional opportunities in music education. The Hearing Officer expressed skepticism about the appropriateness of MAICEI, without ultimately ruling on the question. Instead, the Hearing Officer reasoned that irrespective of MAICEI, the Transitions component—which represented only a part of the student’s program at that time—was alone appropriate for the student. This is an unusual, and, for parents, disheartening result; while it is not altogether uncommon that a Hearing Officer orders that a District provide more (or alternative) programming to render a disputed program appropriate, the Hearing Officer appears to be suggesting that a District could have, in fact, provided less programming. As that was not a question before the Hearing Officer, we believe that is an overreach potentially detrimental to the student.

This decision serves as a tough reminder that a District need not provide a student with an ideal program (here, one tailored towards the students’ intense musical interest and skill). Rather, a District need only provide an adequate transition program that accounts for the student’s interests and enables their progress.

Parents Win Battle of the Experts and Win Case for Language‑Based Program

In Swansea Public Schools, BSEA No. 2202178, 28 MSER 150 (Berman, June 14, 2022), the parents challenged the appropriateness of Swansea’s ninth‑grade program for their daughter, a student with specific learning disabilities in reading, writing, and math, as well as ADHD and significant executive dysfunction. For the three school years prior (sixth through eighth grades), the student attended Wolf School (“Wolf”), an approved private school, per Swansea’s IEP. As Wolf’s enrollment ended in eighth grade, Swansea proposed a purported substantially separate language‑based program within its public high school for the student’s ninth‑grade year. At hearing, there was no dispute that the student made progress at Wolf and that she required continued, intensive language‑based programming in high school. The crux of the issue, therefore, turned on whether Swansea’s program could meet the student’s needs. Following a concise but astute discussion, the Hearing Officer readily found that that it could not.

Overall, the Hearing Officer was unmoved by the Swansea witnesses’ “generic assurances” and “conclusory statements” that the proposed program could provide the intensive language‑based instruction and well‑matched peer cohort that the student required. That testimony lacked detail and corroborating information, and the Hearing Officer gave it no weight. Instead, the Hearing Officer relied on the testimony and reports of the student’s neuropsychologist and program evaluator. During her observation of Swansea’s proposed program, the program evaluator did not observe the use of any language‑based strategies in the English or science classes and only two language‑based interventions in the math class. The program observer also identified discrepant skills among the observed peer cohort, and, Swansea’s own witness provided additional information about the actual peer cohort; together, these facts supported a finding that the student’s peer group would not be appropriate for her. Even though there appeared to be ample evidence to make such a finding, we note that peer IEPs, which are discoverable if adequately redacted to preserve confidentiality, may have provided even further documentary proof of the parents’ position.

Determining that Swansea could not somehow make its program appropriate without fundamentally changing it, the Hearing Officer ordered that the District locate or create an appropriate language‑based program within fifteen days or otherwise place the student residentially at the Landmark School, a conclusion that she did not reach lightly. Even though the student did not need a residential program for educational reasons—and that the parents would have preferred that the student remain at home—there were no other appropriate language‑based programs within a one‑hour commute. See 603 CMR 28.08(6)(a). While the parents capably won this case, the decision highlights some of the practical hurdles that nevertheless exist in finding appropriate programs for students.

Parents Entitled to an IEE When the District Failed to Timely Object and When Qualified Parents Sought a “Second Opinion”

Both federal and Massachusetts law entitle a parent to obtain an Independent Educational Evaluation at public expense (“IEE”) under certain circumstances. As is true in a number of areas, Massachusetts provides additional parental rights above the “floor” provided under federal law. Pursuant to IDEA, 20 USC §1415 and its implementing regulations, including 34 CFR §300.502(b): “(1) A parent has the right to an independent educational evaluation at public expense if the parent disagrees with an evaluation obtained by the public agency, subject to the conditions in paragraphs (b)(2) through (4) of this section. (2) If a parent requests an independent education evaluation at public expense, the public agency must, without unnecessary delay, either ‑ (i) File a due process complaint to request a hearing to show that its evaluation is appropriate; or (ii) Ensure that an independent educational evaluation is provided at public expense, unless the agency demonstrates in a hearing pursuant to §§300.507 through 300.513 that the evaluation obtained by the parent did not meet agency criteria.”

Massachusetts does not require a showing of appropriateness and comprehensiveness if the student is eligible for free or reduced‑cost lunch. In those circumstances, the school district must “provide, at full public expense, an independent education evaluation that is equivalent to the types of assessments done by the school district. No additional documentation of family financial status is required from the parent.” However, pursuant to 603 CMR §28.04(5)(d):

“If the parent is requesting an independent education evaluation in an area not assessed by the school district, the student does not meet income eligibility standards, or the family chooses not to provide financial documentation to the district establishing family income level, the school district shall respond in accordance with the requirements of federal law. Within five school days, the district shall either agree to pay for the independent education evaluation or proceed to the Bureau of Special Education Appeals to show that its evaluation was comprehensive and appropriate. If the Bureau of Special Education Appeals finds that the school district’s evaluation was comprehensive and appropriate, then the school district shall not be obligated to pay for the independent education evaluation requested by the parent.”

In other words, when an evaluation is conducted in accordance with 34 CFR §§300.304 through 300.311 and a parent disagrees with the evaluation because a child was not assessed in a particular area, the parent has the right to request an IEE to assess the child in that area to determine whether the child has a disability, and the nature and extent of the special education and related services that child needs. Nevertheless, a school‑based evaluation is a pre‑requisite to an IEE since a parent’s right to an IEE stems from the parent’s disagreement with the results of the school‑based evaluation, or from the parent’s belief that a different area must be evaluated. A parent is only entitled to one IEE at public expense each time the public agency conducts an evaluation with which the parent disagrees.

This quarter contains two decisions relating to challenges to parents’ requests for IEE. Easthampton Public Schools, BSEA No. 2203513, 28 MSER 77 (Nir, May 9, 2022) involved parents’ request for an IEE after the district had performed evaluations. The Hearing Officer detailed the extensive, multiple evaluations done by highly qualified district representatives. In response to the parents’ request for an independent neuropsychological and psycholinguistic evaluation, the district filed a timely hearing request to defend the appropriateness and comprehensiveness of the district’s evaluation.

The Hearing Officer found that the “overwhelming evidence” established that the district’s evaluations were comprehensive and appropriate and therefore the Parents were not entitled under IDEA to an IEE. However, noting that Massachusetts law does not require a showing of appropriateness and comprehensiveness if the student is eligible for free or reduced cost lunch, the Hearing Officer found that the parents were nonetheless entitled to what was essentially a “second opinion.” Because the student was eligible for free or reduced cost lunch and the evaluations sought were equivalent to those performed by the district, the parents were entitled to an IEE.

The other IEE case, Newton Public Schools, BSEA No. 2208172, 28 MSER 63 (Nir, April 19, 2022) focused on the timeliness of the district’s filing to challenge the parent’s request for an IEE and whether certain things tolled the running of the five school day filing deadline. After Newton had performed their evaluations, the parent requested an IEE in a Thursday, March 10, 2022, 11:35 A.M. email to the district. In a 4:51 P.M. email later that same day, the parent clarified that they were seeking a psychological evaluation. In response, a Newton administrator unsuccessfully attempted to contact the parent via phone. He followed up with an email on March 14, 2022 asking for specifics about the parent’s concerns and to discuss some options. On March 15, 2022, the parties spoke and the parent asked for some time to consider their IEE request. The parent wrote in a March 15, 2022, 3:56 P.M. email that they reiterated their request for an IEE and they would not share their financial information with the district. On Friday, March 18, 2022 the district filed a hearing request challenging the necessity of the IEE.

The sole question was whether Newton had filed their request within five school days. First, when does one start counting? Looking to Rule 6(a) of the Federal Rules of Civil Procedure for guidance, the Hearing Officer held that the day of the event that triggers the time period is excluded. Therefore, the first of the five school days within which to file the hearing request was Friday, March 11, 2022, the day after the request for the IEE. Newton argued that since the email clarifying that the parent was seeking a psychological evaluation came at 4:51 P.M. on Thursday, March 10, 2022, after regular school hours, the next school day, Friday, March 11, 2022 should be considered the day of the request for the IEE, making Monday, March 14, 2022, the first of the five school days. The Hearing Officer disagreed, noting that the initial request came the morning of March 10, 2022. 34 CFR 300.502(b)(4) explicitly states if “a parent requests an independent educational evaluation, the public agency may ask for the parent’s reason why he or she objects to the public evaluation. However, the public agency may not require the parent to provide an explanation and may not unreasonably delay either providing the independent educational evaluation at public expense or filing a due process complaint to request a due process hearing to defend the public evaluation.” Communications between a district and a parent subsequent to a request for an IEE do not “toll” or “restart” the five school day filing period. The clock began to run on March 11, 2022 and the fifth school thereafter was March 17, 2022. Therefore, the district’s filing on March 18, 2022 was untimely and Newton was required to provide the IEE.

District Awarded Substituted Consent for Observation

Waltham Public Schools and Belmont, BSEA No. 2208477 (Mitchell, June 8, 2022) involved an interesting discussion around whether, and to what extent, a school district may receive substituted consent to conduct an observation of a student, when the student’s parents had already refused to provide their own consent. Here, Waltham had sought substituted consent during the course of litigation, after the parents had initiated the instant action alleging that the student’s program denied him a FAPE. Apparently, the parents had not rejected the students’ IEPs (and, in fact, to date, the student’s IEP was still accepted), and the Hearing Officer found that Waltham was unaware of the existence of any such dispute until the day before the parents filed their case.

On the unique facts before her, the Hearing Officer awarded Waltham substituted consent, since Waltham was seeking an observation in order to evaluate the very issue in dispute (i.e., the appropriateness of the student’s current program), of which it had not been previously aware. We emphasize a few statements buried by the Hearing Officer in footnotes, which we believe deserve special note, specifically: (1) that her ruling should not stand for the proposition that a school district has a right to conduct an observation or evaluation any time that parents file a Hearing Request; and (2) had there been insufficient time for the observation and associated review meeting to occur, the result may have been different. Should this issue arise in future cases, we hope that these careful limitations are applied.

Joinder of State Agencies

The BSEA is empowered to assert jurisdiction over a state agency, i.e. the Massachusetts Department of Children and Families (“DCF”), in certain circumstances. MGL c. 71B, §3 and 603 CMR 28.08(3). One can join the state agency if it is necessary to provide complete relief to the student and if the student will only be able to access the school district’s special education program if services over and above those that are the responsibility of the school district need to be provided by the state agency

However, the BSEA may only act in accordance with that agency’s own rules, regulations and policies. Pursuant to BSEA Hearing Rule I(J):

Upon written request of a party, a Hearing Officer may allow for the joinder of a party in cases where complete relief cannot be granted among those who are already parties, or if the party being joined has an interest relating to the subject matter of the case and is so situated that the case cannot be disposed of in its absence. Factors considered in determination of joinder are: the risk of prejudice to the present parties in the absence of the proposed party; the range of alternatives for fashioning relief; the inadequacy of a judgment entered in the proposed party’s absence; and the existence of an alternative forum to resolve the issues.

Lexington Public Schools and Xili, BSEA No. 2206000, 28 MSER 71 (Reichbach, March 31, 2022) and Lexington Public Schools and Xili, BSEA No. 2206000, 28 MSER 74 (Reichbach, April 28, 2022) arose from the parents’ hearing request for an extended evaluation in a therapeutic residential school. Lexington moved to join DCF as a necessary party. Lexington had filed a Child Requiring Assistance (“CRA”) petition for truancy three years earlier. DCF became involved and provided support services. In the March 2022 ruling, the Hearing Officer allowed the motion to join because it was unclear at that early stage whether DCF was still involved and there was a possibility that as part of the relief, the Hearing Officer could order DCF to provide some services. In the April 2022 ruling, DCF had established that the CRA had been dismissed by the Juvenile Court on March 4, 2022, DCF had determined that no further services were necessary and had sent the family a “Case Closing Letter” with an opportunity to contest that closing at a fair hearing. The parents did not pursue a challenge to the case closing. Therefore, the Hearing Officer could not order DCF to provide any services without violating the agency’s rules and regulations. As such, the motion to join DCF was denied upon reconsideration.

In contrast to the Lexington case, DCF was joined to the proceedings in Lynn Public Schools and Yakov, BSEA No. 2205881, 28 MSER 104 (Reichbach, May 19, 2022). The parents filed a hearing request seeking a residential therapeutic placement for their 15‑year‑old son. They moved to join DCF to the proceedings. DCF claimed that although they had an open clinical case with the student as the result of the district’s filing of a 51A, it did not have care or custody of the student and therefore no legally cognizable relationship between DCF and the student existed that would provide a basis for any BSEA order compelling DCF to provide services. The Hearing Officer noted that DCF regulations allow for the cost share of a residential placement only for a child who is in its care or custody. Because the Student here was not, that would not provide a basis for joining DCF. However, at that stage of the proceedings, the Hearing Officer could not rule out non‑residential relief and the possibility that DCF would be ordered to provide some services, therefore allowing the motion to join.

The BSEA is a Court of Limited Jurisdiction

Two Springfield cases delineate some of the limitations to the BSEA’s jurisdiction. Springfield Public Schools, BSEA No. 2203555, 28 MSER 111 (Berman, June 1, 2022) arose in part out the district barring the parent from using a “memory aid” device at a Team meeting. The parent alleged violations of the Americans with Disability Act (“ADA”) and discrimination under Section 504. As the BSEA is limited to claims arising out of IDEA and Section 504, the Hearing Officer found that she had no jurisdiction to adjudicate ADA claims. The Section 504 claim was allowed to proceed only as it would relate to the parent not being able to meaningfully participate in a Team Meeting. The parent also alleged that the district improperly emailed confidential and personally‑identifying information in violation of various state and federal student privacy statutes. This claim was dismissed because there was no allegation that the disclosure impacted the student’s FAPE. In addition, there is no private right of action for violations of these privacy statutes, essentially making them rights without a remedy.

Similarly in Springfield Public Schools, BSEA No. 2208440, 28 MSER 139 (Nir, June 3, 2022), where the district disclosed personally identifiable information about a student, the BSEA lacked authority to order any relief for that disclosure, including striking the reference from the record. As such, the BSEA dismissed that claim of the parents.