Commentary on Massachusetts Special Education Decisions: 1st Quarter, 2023 by Daniel T.S. Heffernan and Alicia M.P. Warren:
September 14, 2023
The BSEA had a relatively quiet quarter, issuing three decisions and nine rulings. In the two decisions discussed in this commentary, Peabody and Blackacre, the parents prevailed. The rulings addressed a spattering of many of the usual issues, including discovery and joinder.
PARENT PREVAILS ON CLAIM THAT STUDENT’S CONDUCT WAS A MANIFESTATION OF HIS DISABILITY
In In Re: Peabody Public Schools, BSEA No. 2304801, 29 MSER 1 (Berman, Jan. 4, 2023), the parent achieved a rare victory, having met her burden of proof both without the representation of counsel and without independent expert support for her position. Based on a considered review of the record, the hearing officer overturned Peabody’s determination that the student’s alleged misconduct was not a manifestation of his disability.
The student, an eighth‑grader diagnosed with Attention‑Deficit/Hyperactivity Disorder (ADHD) and a specific learning disability in reading, was alleged to have committed a felony delinquency offense near school property only days after school had resumed for the year. Specifically, the student was alleged to have twice kicked a peer, after having followed him through the school’s parking lot and off the school’s grounds.
While there was limited evidence about the nature of the incident, including its precipitating events, due to the ongoing nature of the delinquency proceedings, there was ample evidence about the student, his disabilities, and their overall impact on his functioning. For instance, the record demonstrated that the student had a history of academic and behavioral struggles in seventh grade, which led to his being deemed eligible for special education just prior to that school year’s conclusion. He was formally disciplined numerous times, for engaging in impulsive, defiant, and disruptive (albeit not primarily aggressive) behaviors. Those behaviors tended to have persisted, even after the student had been asked to stop by teachers and staff. On one occasion, the student involved himself in an argument between two other peers, ultimately pushing a student and throwing (without landing) punches. On another, he threw small objects at his teacher. The student’s troublesome behaviors continued during eighth grade, after he had committed the alleged felony offense but before he had been disciplined by the school in connection therewith. After the school became aware of the alleged felony offense, the student was removed from school pursuant to MGL c. 71, § 37H ½ (1) pending further disciplinary proceedings, including the district’s convening a Team to conduct a manifestation determination review (MDR).
When facing disciplinary exclusions, eligible students, as compared to their non‑disabled peers, are afforded additional rights. According to the Individuals with Disabilities Education Act (IDEA), 20 USC § 1415(k), and its implementing regulations, 34 CFR §§ 300.530‑536, “school districts may not change the placements of students with disabilities for disciplinary reasons (i.e., via suspension or expulsion) if the conduct triggering the removal is a manifestation of a student’s disabilities, that is, was caused by, has a direct and substantial relationship to those disabilities, or was the direct result of the school district’s failure to implement the student’s IEP.” 29 MSER 7. A “change in placement,” according to the statute, occurs when the removal constitutes more than ten consecutive school days or constitutes a pattern of removals totaling more than ten non‑consecutive school days. 20 USC 1415(k); 34 CFR 300.536. The MDR Team, comprised of the district, the parent, and relevant members of the student’s IEP Team (as determined by the district and the parent), is tasked with reviewing all relevant information in the student’s file—a comprehensive undertaking—to determine whether the student’s conduct was a manifestation. If so, the district must conduct a functional behavior assessment (FBA), if one had not been previously conducted, and either develop a new or review (and potentially revise) an existing behavior intervention plan (BIP).
Here, the hearing officer carefully analyzed both the procedure and substance of the district’s manifestation determination. While the MDR Team was properly convened within ten days of the student’s removal, the hearing officer questioned whether it was properly constituted. On the latter point, the hearing officer noted that the MDR Team included: three educators who had worked with the student for, at most, five‑to‑thirteen days; administrators who had limited knowledge of the student; and the school psychologist, Dr. Hynick, who had evaluated the student during the previous school year but who did not have any subsequent contact with him. The hearing officer additionally questioned whether the MDR Team properly included the parent in constituting its participants and in receiving relevant information about the student.
Setting aside issues bearing on “the flawed MDR process,” the hearing officer capably tackled the substance of the determination. 29 MSER 9. In concluding that the student’s alleged misconduct was not a manifestation, the MDR Team had heavily relied on Dr. Hynick’s opinion. Dr. Hynick, while recognizing that the student’s ADHD pervasively impacted his functioning and resulted in his impulsive behaviors at school (such as wandering the school’s hallways, calling out, refusing to follow directives, and engaging in horseplay), stated that the student did not show a pattern of aggression. With respect to the misconduct in question (i.e., the alleged felony assault), Dr. Hynick testified that the student’s behavior lacked ADHD‑associated impulsivity, because he allegedly followed his peer for a sustained period of time before ultimately kicking him.
For multiple reasons, the hearing officer found Dr. Hynick’s opinion unreliable. The hearing officer reasoned that it was too speculative, as little was known about the incident itself (a function of the pending delinquency proceeding), and that the misconduct could have stemmed from a continuation of impulsive behavior, as shown by the student’s demonstrated history of having trouble stopping a pattern of behavior once it started, be it tapping a pencil, banging his computer on his desk, wrestling with peers, or fooling around in the cafeteria. According to the hearing officer, Dr. Hynick’s opinion was further undermined by his original evaluation, which had not elicited information about the student’s behaviors from teachers and parent alike, as well as the fact that he had not met and/or re‑evaluated the student to assess his then‑current presentation.
Relying instead on the record, the hearing officer reasoned that the student, while not having displayed a pattern of aggressive behavior, certainly displayed chronic, persistent, disruptive behaviors, despite prompting and re‑direction after having been repeatedly told to stop, and which, on occasion, caused him to physically act out. Thus, the hearing officer found that the student’s behavior was a manifestation of his ADHD. She ordered the district to reverse its finding, allow the student’s immediate return to school, implement his IEP in full, and offer to conduct an FBA which considers, among other things, input from the parent regarding the student’s presentation at home.
The decision in this case should serve as an important reminder for school districts in at least two respects: (1) that a parent must be afforded the opportunity to meaningfully participate in the MDR process; and (2) that a manifestation determination must be based on a thorough review of the student’s record, which includes recent information from teachers and staff with a proper basis of knowledge of the student’s profile and behaviors.
PARENTS SUCCESSFUL IN MOVING STUDENT FROM A COMMENDABLE INCLUSION PROGRAM TO A COLLABORATIVE WITH A WELL‑ESTABLISHED PROGRAM FOR SIMILAR STUDENTS
In Re: Blackacre Regional School District, BSEA No. 2300441, 29 MSER 60 (Nir, March 16, 2023) involved a fifteen‑year‑old ninth‑grader with significant hearing loss and an emotional disability. His academic performance was exceptional, but he felt very isolated being in an inclusion placement in a “hearing school” and expressed his desire to “be with his people.” While there were two other students with hearing impairments in the seven hundred fifty‑two‑student high school, the student did not have a meaningful relationship with either one.
Parents sought placement in the CAPS program, a public, school‑based program for middle and high school students who are hard of hearing or deaf. The high school program is located at Newton North High School, which was formerly part of the EDCO Collaborative that has served Massachusetts students with hearing impairments for over fifty years. CAPS provides services for students using a variety of communication modalities, including American Sign Language (ASL), audiation, and spoken English. It provides services designed to meet individual learning needs with a specific regard for language, communication modality and choice of amplification (i.e., hearing aids, cochlear implants). CAPS staff includes one Teacher of the Deaf, two ASL/English Interpreters, one counselor, one paraprofessional, and one speech and language pathologist. All staff are bilingual and bimodal, although none are deaf or hearing impaired. There are two thousand two hundred students at Newton North High School. There are ten CAPS students, five of whom have cochlear implants. Four students are fully included, and the remaining are included for some part of their day.
As in almost all successful claims by parents, the student had two very strong experts supporting their position, both having specialized knowledge of, and experience with, similar students, as well as a longstanding relationship with this particular student. As student’s anxiety intensified, he began meeting with Dr. Sanjay Gulati three to four times per month. Dr. Gulati first met the student in December 2021 and has been the student’s psychiatrist since then. Dr. Gulati is board‑certified in psychiatry and neurology. His psychiatric practice focuses on people with hearing impairments. Dr. Gulati currently has approximately four hundred active clients, two‑thirds of whom are children and adolescents. Dr. Gulati had progressive hearing loss in his late teens and is now completely deaf. The student also had a relationship since he was four‑years‑old with Terri Panacre, his case manager with the Massachusetts Commission for the Deaf and Hard of Hearing. She has a bachelor’s degree in communication disorders and a master’s degree in deafness rehabilitation. Ms. Pancare has worked for the Commission since 1993. In her current role as a child specialist, Ms. Pancare meets with families, discusses options regarding communication modalities, makes referrals, works with sister agencies, and attends IEP meetings for students on her caseload. She is also on the Department Elementary and Secondary Education (DESE) Steering Committee for the Deaf and Hard of Hearing. In part, her work with DESE resulted in the issuance of the Guidance on the Application of Least Restrictive Environment (LRE) for Students Who Are Deaf or Hard of Hearing.
It is sometimes a difficult tactical decision as to whether a student should testify at hearing, respecting the student’s and parent’s desires as well as the unpredictability of how the student will do on the witness stand in a stressful and highly unfamiliar situation. Here, the student testified compellingly with the hearing officer describing him as “animated” when he spoke of the CAPS program.
Blackacre was commendable for developing an IEP that incorporated numerous evaluations and met the majority of the student’s needs, and working hard to ensure that his accommodations were consistently implemented. While the student was excelling academically, the strain and isolation of the student and his significant auditory fatigue could not “be trivialized.” The hearing officer found the evidence “overwhelming” that the student’s auditory fatigue could not be meaningfully mitigated without a change in placement. The current placement did not meet the student’s emotional, social and mental health needs and “vastly” increased his depression risk. The testimony of Dr. Gulati and the student persuaded the hearing officer that the absence of a larger “critical mass” of peers prevented the student from “benefit[ting] educationally” in the program in which he was enrolled. As such, the district had failed to offer student a FAPE in the LRE. The hearing officer ordered that the student be placed at the CAPS program.
THE ORDERED IEE IS TO BE CONDUCTED AT THE PUBLIC RATE AND NEED NOT INCLUDE AN OBSERVATION UNLESS THE DISTRICT CONDUCTED AN OBSERVATION AS PART OF ITS PREVIOUS EVALUATION
In Re: Easthampton Public Schools, BSEA No. 2203513, 29 MSER 42 (Nir, Jan. 27, 2023), the parents sought “clarification” about the hearing officer’s earlier decision. In that decision, Easthampton Public Schools, BSEA No. 2203513, 28 MSER 77 (Nir, May 9, 2022), the parents requested an independent educational evaluation (“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 a 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 district contracted with the evaluator of the parents’ choosing. Here the parents sought an order that the district fund the psycholinguistic evaluation at a rate higher than that proposed by the district and that it include funding for an observation as well. The purported rationale for this was that since there are no rates for “psycholinguistic” evaluations, the appropriate rate should be that which is charged by the provider to the general public. Concerning the observation, the parents argued that should be required because the district conducted observations as part of their assessments.
The hearing officer denied the parents’ request. Significantly, the hearing officer had previously ruled that the parents were entitled to IEEs “equivalent to the types of assessments done by the school district.” While there is no applicable rate for a “psycholinguistic evaluation,” the hearing officer agreed with what the district offered: the sum of the established rates for the components that would comprise the psycholinguistic evaluation. Concerning an observation, none of the CMR definitions for a neuropsychological evaluation (101 CMR 330.02), educational assessment (101 CMR 330.02) or speech and language evaluation (101 CMR 330.04) include an observation. In addition, the parents’ own private neuropsychologist did not conduct an observation. The hearing officer denied the request to fund an observation unless the district’s school psychologist conducted an observation as part of her assessment.
A NOTE ABOUT PARENTAL CONSENT
In Re: Wakefield Public Schools, Phoenix Academy Charter Public High School, and Alex, BSEA No. 2305823, 29 MSER 47 (Reichbach, Mar. 3, 2023) concerned a high school student with multiple diagnoses, including Intellectual Learning Disability (severe), Generalized Anxiety Disorder, and Developmental Disorder of Speech and Language. When the school had sought the parents’ consent to conduct an initial evaluation of the student, the parent had consented to some, but not all, of the proposed assessments. Following the completion of those assessments, the school deemed the student eligible for special education and proposed an initial IEP. The parents fully rejected the IEP. The charter school filed for a hearing, largely seeking: (1) substituted consent to conduct the remaining initial assessments of the student; and (2) the BSEA’s stamp of approval on the initial, fully rejected IEP.
Even potentially sympathetic facts cannot alter clear law. Absent parental consent for the conducting of initial evaluations, Massachusetts law prohibits schools from proceeding with those evaluations and seeking a hearing to request that the BSEA grant substituted consent to proceed. 603 CMR § 28.08(3)(c). Similarly, absent parental consent for the initial provision of special education services, both federal and state law prohibit schools from seeking a decision from the BSEA that the proposed services can be provided. 24 CFR § 300.300(b)(3)(i); 603 CMR § 28.08(3)(c). The hearing officer easily disposed of the school’s claims, finding that the BSEA lacked jurisdiction over them.
 There is no “Blackacre” school district in Massachusetts. The BSEA always provides fictitious family names to protect the privacy of the student involved. On rare occasions, districts have prevailed upon hearing officers, as they have in this case, to use a fictitious name for the school district. There is no explanation in the decision for allowing this extraordinary editing.