INTRODUCTION

The BSEA had a moderately busy second quarter, issuing four decisions and eight rulings.  The district prevailed in all four decisions, with three of the four decisions involving district-initiated proceedings.  An unlikely spattering of rulings, which are discussed below, concerned matters of compliance and enforcement, outlining the scope of the BSEA’s authority.

PARENTS LOSE THE BATTLE OF THE EXPERTS AND LOSE CASE FOR TUITION REIMBURSEMENT

In Re: Ipswich Public Schools, BSEA No. 23-01247, 29 MSER 107 (Kantor Nir, May 4, 2023) involved a familiar situation, namely, a student is struggling within a public school program, the parents unilaterally place a student at a private school, and, in seeking reimbursement for all costs associated with the private placement, a battle of the experts ensues.  In this case, the parents lost that battle.

The student was a seventh grader with a diagnosed learning disability (Dyslexia), who had been attending Windham Woods, an unapproved private school, on a unilateral basis for approximately one school year.  The parents initiated the student’s placement at Windham Woods, pursuant to recommendations of the student’s neuropsychologist, Dr. Amanda Ward, and education specialist, Cathy Mason, both of whom had assessed the student.  Ms. Mason had also observed the student during her sixth-grade year at Ipswich.  Dr. Ward and Ms. Mason recommended student’s placement in a substantially separate language-based program, having determined that she was not making progress within the district’s program.  Ipswich’s teachers/staff, as well as a district-contracted outside consultant, Melissa Fleet, disagreed.  Thus, the battle ensued.

In assessing whether Ipswich’s IEP proposing an in-district program for the student denied her a free appropriate public education (“FAPE”) for seventh grade, the hearing officer focused her analysis on the student’s sixth-grade year.  Throughout the student’s sixth-grade year, Ipswich had steadily increased her total service minutes (from 580 to 920 to 1100 minutes/week), in part in response to Dr. Ward’s and Ms. Mason’s recommendations.  The hearing officer also credited the testimony of the student’s teachers and service providers, which was supported by her progress on two reading programs implemented by the district and specifically endorsed by Dr. Ward.  Further, the hearing officer credited the testimony of the outside consultant, Ms. Fleet, who, rather surprisingly, neither evaluated the student nor spoke with her or her parents.  Nevertheless, the hearing officer cited a few reasons why she deemed Ms. Fleet’s conclusion that the Ipswich program was appropriate, including the fact that Ms. Fleet is largely engaged by parents (as opposed to school districts) and that she made at least some recommendations for improvement of the student’s IEP.

In contrast, the hearing officer found Ms. Mason’s testimony unpersuasive, due to a factual error in her written report regarding the frequency of certain of the student’s services, her rebuffed position that Ipswich was not reliably implementing the student’s Wilson reading program, her concluding that Windham Woods was appropriate for the student based not on her observations but on staff report, and her failing to reconcile the district’s evidence of the student’s progress with her own recommendations.  Notably, Dr. Ward did not testify at the hearing, leaving Ms. Mason to shoulder the brunt of the evidentiary burden on the parents’ behalf.

Having found Ipswich’s IEP appropriate, the hearing officer did not reach the question of whether Windham Woods was appropriate, even though she used Ms. Mason’s testimony regarding Windham Woods as a reason to further diminish her credibility.

This case appeared hard fought but perhaps ill-timed.  While it is impossible to identify the exact moment when it is most strategic for parents to make a unilateral placement, and subsequently, initiate litigation, parents must consider the risks of proceeding on both fronts when faced with increasingly robust IEP proposals, as well as the anticipated unavailability of their key experts.  Battling with only one expert against school districts that can seemingly enlist a squadron of their own experts is often a daunting endeavor.

The importance of expert testimony is further illustrated by the remaining three decisions this quarter:  In Re Whiteacre Pub. Sch., BSEA No. 2303703, 29 MSER 81 (Berman, Apr. 7, 2023); In Re: Westfield Pub. Sch., BSEA No. 2212235, 29 MSER 125 (Kantor Nir, May 15, 2023); and In Re: Middleborough Pub. Sch., BSEA No., 2309287 (Putney-Yaceshyn, June 2, 2023).  In all three decisions, the districts prevailed against pro se parents who, in defending against district-initiated claims, had no expert witnesses to support their positions.

THE LIMITS TO THE BSEA’S AUTHORITY TO ENFORCE ITS OWN DECISIONS AND MEDIATED AGREEMENTS

Three rulings this quarter bear on the limits of the BSEA’s jurisdiction and powers.

In Re: Whiteacre Public Schools, BSEA No. 2303703-C, 29 MSER 171 (Berman, June 22, 2023) the school district filed a “Motion to Order Compliance with the Decision.”  The “decision”, issued on April 7, 2023 (29 MSER 81) and referenced above, provided:

Based on the foregoing, I conclude that the School has met its burden of proving that Student’s current services and placement do not provide Student with a FAPE and cannot feasibly be modified to do so. I further conclude that Student requires placement in an approved public or private out of district setting, which may include a private or public day school or a program within a public high school in a different district, that is designed for students with autism or related disabilities, and that can provide Student with ABA programming, expertise with the communication needs of students who are non-speaking and who use total communication and assistive communication technology, an appropriate peer grouping, necessary safety precautions and accommodations for his medical conditions, and extended school year programming.

The district located what it purported to be an appropriate out-of-district placement for the student at the Senators Program within the CAPS Collaborative. CAPS indicated that it would accept the student as soon as the parents completed the necessary paperwork and CAPS hired a 1:1 paraprofessional for the student. However, the parents believed CAPS to be a substandard program and refused placement.

The hearing officer found it unnecessary to have a hearing on the matter and denied the district’s motion for two reasons.  First, because the BSEA lacks authority to “enforce” its own decisions, or to issue orders directing parents to change a child’s placement. Second, because the decision cannot and does not require any particular action on the side of the parents.  If the parents wished to pursue their claim that the CAPS placement would not comply with the earlier order, the proper avenue for that would be a motion to order compliance with the decision pursuant to BSEA Hearing Rule XIV.

BSEA Hearing Rule XIV provides:

A party contending that the Hearing Officer’s decision is not being implemented may file a motion requesting the BSEA to order compliance with the decision.

The motion shall set out the specific areas of alleged non-compliance. The Hearing Officer may convene a hearing on the motion at which the scope of inquiry will be limited to facts bearing on the issue of compliance, facts of such nature to excuse performance, and facts bearing on a remedy. Upon a finding of non-compliance, the Hearing Officer may fashion appropriate relief and/or refer the matter to the Legal Office of the Commonwealth of Massachusetts Department of Elementary and Secondary Education for enforcement.

The regulations associated with IDEA 34 CFR §300.513(a)(1)-(2) explicitly allow hearing officers to order school districts to comply with the procedures mandated by the provision, stating that “[n]othing in paragraph (a) of this section shall be construed to preclude a hearing officer from ordering an LEA to comply with procedural requirements under §§300.500 through 300.536.” (emphasis supplied). Nowhere, however, does the regulation authorize hearing officers to issue orders directing parents or guardians to take, or refrain from taking, any action in relation to the substance of the decision, or to “enforce” decisions with respect to any party.  Massachusetts’s regulations provide the same – 603 CMR 28.08(5)(c).

Concerning “enforcing” decisions, the BSEA has no mechanism, such as contempt proceedings, to enforce a decision.  A hearing officer may still consider the legal implications of an agreement with respect to the student’s special education rights, and order school districts to take certain steps to comply with the rights. Further, the regulation governing compliance hearings, 603 CMR 28.08 (6)(b), and the corresponding Rule XIV of the BSEA Hearing Rules both state that for enforcement purposes, the hearing officer may refer the matter to the legal office of the Department of Elementary and Secondary Education (DESE), which, as the agency responsible for ensuring that school districts comply with the IDEA, may take some type enforcement action regarding a school district found not to be in compliance with a hearing officer decision, but which, itself, has no such authority over parents or guardians.

Here, since no statute or regulation authorizes hearing officers to order or direct parents to take any action with respect to the IEP or placement, the district’s motion was denied.  If the parents do not agree with the change of placement, they must file an appeal of the decision and if they believe the district’s offer does not comply with the prior order, they may file a separate motion to order compliance pursuant with BSEA Hearing Rule XIV.

In In Re: Westfield Public Schools, BSEA No. 2212235C, 29 MSER 174 (Kantor Nir, June 26, 2023) the district moved pursuant to BSEA Hearing Rule XIV for an order directing the parents to comply with the hearing officer’s May 15, 2023 decision granting substitute consent for an extended evaluation.  Following the decision, Westfield sent referral packets to four separate therapeutic schools, including Curtis Blake. The parents visited three of the schools but did not complete the intake process at any of them. The district alleged that the parent failed to fully participate in the intake process at these programs, and it was very likely that one or more of them would accept the student for the extended evaluation. The parent responded that they were encouraging the student to attend Curtis Blake, but he refused.  The parent proposed alternatives to the extended evaluation, including homeschooling.

The hearing officer noted that while the BSEA lacked the authority to enforce a decision, it is empowered to determine whether an order has been complied with. If the school district has failed to comply, the BSEA has generally ordered relief in the form of compensatory services or reimbursement for privately secured services.  It may also refer the matter to DESE or other office for appropriate enforcement.  Cases involving the parent’s failure to comply are rare and in that regard, the hearing officer quoted approvingly from Hearing Officer Sara Berman’s decision in Whiteacre, discussed above. However, the hearing officer may make findings and an order with respect to parental failure to comply with a BSEA decision.  Here, while the hearing officer agreed that she had no power to order the parent to comply and take action regarding the extended evaluation, she did hold that if the parent chooses not to submit the student for the extended evaluation, the district will be deemed to have satisfied its obligations to comply with the order.  So, the parent was left with two options: follow through with the referral process to the programs offered by the district or move pursuant to BSEA Hearing Rule XIV alleging the district had not complied with the order.

In Re: South Hadley Public Schools, BSEA No. 2311287, 29 MSER 140 (Kantor Nir, June 8, 2023) the parent brought an action to enforce a March 2023 mediation agreement and the district moved to dismiss for lack of jurisdiction.  The hearing officer’s split decision on the motion to dismiss demonstrates the complexity of the BSEA’s authority in this regard.  The parent claimed that the mediation agreement between the parties was not being followed by Westfield.

The relevant IDEA provision provides:

Written agreement. In the case that a resolution is reached to resolve the complaint through the mediation process, the parties shall execute a legally binding agreement that sets forth such resolution and that-(i) states that all discussions that occurred during the mediation process shall be confidential and may not be used as evidence (ii) is signed by both the parent and a representative of the agency who has the authority to bind such agency; and (iii) is enforceable in any State court of competent jurisdiction or in a district court of the United States.

20 USC §1415 (e)(2)(F).

The overwhelming majority of BSEA decisions have found that the BSEA lacks jurisdiction over claims addressing enforcement of mediation agreements. Further, it is well settled that a BSEA mediation agreement, signed by all parties and fully implemented, precludes a subsequent BSEA hearing on the issues resolved by the agreement. To conclude otherwise would undermine the relevant provisions of federal and state special education law as well as the underlying legislative purpose and public policy favoring informal, voluntary resolution of special education disputes.

The hearing officer held that while she had no authority to enforce the mediation agreement, she was allowed to consider the legal implications of the agreement as it impacts the student’s special education rights and issue orders to comply with those rights.  Therefore, the parent’s claim for resolution survived.  Specifically, the hearing officer dismissed with prejudice the claim for enforcement of the mediation agreement but scheduled a hearing to delineate how the mediation agreement alters the rights of the parent and student and the responsibilities of the district with regard to Student’s special education services and indicating what actions the district must take.

We have often asserted that the BSEA should retain jurisdiction to enforce agreements because of its expertise in the special education area and as a forum where parents could obtain more prompt and economical relief than in any breach of contract lawsuit in superior court.  We applaud the hearing officers for pointing the way to avenues to obtain such enforcement-type relief, as well as their willingness to weigh in when it involves the ongoing provision of FAPE.