INTRODUCTION

            The first quarter of 2024 marked another quiet one for the BSEA, during which it issued only two decisions and ten rulings.  Both decisions, Brockton and Springfield, are discussed in detail within this commentary.  Parents were unsuccessful in both hearings; in Brockton, however, the parents won the battle but ultimately lost the war.  The rulings continued to address the usual range of topics, such as discovery, joinder of necessary parties, and the contours of the BSEA’s jurisdiction.

PARENTS WITHOUT REMEDY DESPITE DISTRICT’S FAILURE TO PROVIDE STUDENT WITH A FAPE

Brockton Public Schools and Benjamin, BSEA No. 2401643, 30 MSER 45 (Reichbach, March 13, 2024) considered what remedy, if any, would be appropriate to compensate a student for a nearly year-long failure by the district to provide him with a free appropriate public education (FAPE).  At the time of hearing, the student at the center of the dispute, Benjamin, was twenty-two years old.  Due to his significant and complex disabilities, Brockton had placed him in a series of out-of-district placements.  While Benjamin was progressing quite well within his placement at the Center for Applied Behavioral Instruction (CABI), the parents initiated a hearing challenging the eleven-month period during which he was without any educational placement before his enrollment at CABI commenced in July 2022.

In June 2021, over year earlier, Benjamin had been terminated from his prior placement at the Darnell School (Darnell), an approved private special education school.  The next day, Brockton initiated a referral to CABI at the parents’ request.  Benjamin was accepted to CABI in August 2021; however, in light of pandemic-related staffing shortages, CABI could not specify a start date.  In response, the district undertook efforts to arrange and provide for various tutoring services at various times and locations pending Benjamin’s placement at CABI, all while expressing its willingness to send referrals to other programs and maintaining regular contact with CABI and the parents.  The parents declined the district’s offers at every turn, and, in July 2022, without having received any interim services, Benjamin finally enrolled at CABI.  Acknowledging that it owed Benjamin some level of compensatory education, the District agreed to continue to fund Benjamin’s placement at CABI for six months following his upcoming twenty-second birthday (and the natural termination of his special education eligibility due to his age).

The majority of special education disputes center on the appropriateness of a student’s proposed Individualized Education Program (IEP).  This case, however, focused on the district’s failure to implement his IEP – a mater to which the district stipulated – and, relatedly, the form of any potential compensatory remedy.  In general, “compensatory education is not an automatic entitlement, but rather, a discretionary remedy for nonfeasance or misfeasance in connection with the school system’s obligations under the IDEA.”  While the hearing officer readily found that the district materially failed to implement Benjamin’s IEP, and that he likely experienced both academic and behavioral loss during that period of violation, she exercised her discretion to deny any award of compensatory education.

At first glance, this result appears harsh.  However, through careful analysis, the hearing officer reasoned that the parents had undercut the IDEA’s collaborative process, by acting unreasonably (even if they were initially well-meaning) in refusing to explore alternatives to CABI and failing to make Benjamin available for in-person academic and related services.  In contrast, the hearing officer found the district to be diligent in its monitoring the status of Benjamin’s acceptance at CABI throughout the delay and its efforts to secure another placement and services for Benjamin.  Further considering the district’s voluntary six-month extension of Benjamin’s special education eligibility, the hearing officer concluded that placing the entire burden for compensatory education on the district would therefore amount to an “unfair penalty.”  As parties approach questions of what compensatory education may be due, even in cases where there is an indisputable violation of a student’s rights, it is important to remember that a hearing officer’s equitable discretion in fashioning relief is wide, and the entirety of the surrounding circumstances will help inform their ultimate determination on the issue.

STUDENT NOT ENTITLED TO MCAS TUTORING FROM A SPECIAL EDUCATION OR LICENSED SUBJECT TEACHER

Springfield Public Schools, 30 MSER 18, BSEA# 2309351 (Mitchell, January 25, 2024) involved parties who had been before the BSEA myriad times, resulting in seven previous written rulings. The one facet of this particular decision that we comment on is the parent’s unsuccessful attempt to have Springfield provide a licensed biology or special education teacher as a tutor to support the student in preparing for his retake of the biology MCAS exam while he was enrolled in the post-secondary College Steps Program at American International College (“AIC”). The student alleged that because he was not given that support, he did not pass the MCAS and was not able to obtain his high school diploma before turning twenty-two.

The reauthorization of the IDEA in 2015 under the Every Student Succeeds Act (ESSA) eliminated the definition of “highly qualified” from the IDEA. Rather, ESSA delegated to the individual states the sole authority to determine teacher certification requirements.  ESSA and Massachusetts law maintained the obligation to require that eligible students with disabilities be provided with their special education and related services under the IDEA by properly licensed or certified teachers, related service providers and paraprofessionals.  It is important to note that it is extremely difficult for a parent to insist that the district’s service providers have certain qualifications. The need for specialized qualifications must be supported by strong expert support. Here, no federal or state law required that the student be provided with a licensed biology or special education teacher to tutor him in preparation for the biology MCAS retake.

Although offered, at no time during the 2020-2021 school year did the parent consent to the student being tutored or otherwise provided with any support to prepare to retake the biology MCAS, and thus no tutoring or other such supports occurred during that school year. Included in the student’s 2021-2022 IEP was a recommendation that he avail himself of tutoring and retake the biology MCAS. The district offered two sources of MCAS tutoring:  from Pioneer Valley Tutoring Services, associated with AIC, and an additional ten hours of tutoring from the district. The parent’s partial rejection of this IEP included a statement: “Goal 1, 2 Tutoring by Gen ed/Para is not what was agreed to.”  After a meeting to discuss this rejection, the parent again rejected the offer of in-person tutoring by the district, partly because some of it was to be provided in a school area the parent felt was unsafe. At an October 2021 mediation, the parties agreed, relative to the MCAS tutoring: “the Student will work with a College Step’s (sic) Mentor to provide executive functioning support as the Student works through MCAS Biology in preparation for Biology MCAS testing. This programming will occur during the Student’s College Steps daily programming hours. The Mentor will work with the Student to complete Biology MCAS prep materials for an MCAS Biology Portfolio; District staff will gather and collate the information for submission of the Portfolio. If the Portfolio is not accepted by DESE, the Student will take the Biology MCAS test.” The district thereafter never wavered in its efforts to deliver the tutoring.

The first time the parent requested a licensed biology or special education teacher for the biology MCAS was after the mediation agreement and with regard to assistance in preparing his MCAS portfolio, not with regard to provision of services related to his retaking of the MCAS.  That requirement was also not in the mediation agreement. In addition, the supports the student was to receive to prepare him to retake the biology MCAS were not special education or related services, nor were they part of the student’s IEP. Additionally, the district representatives testified convincingly that the work associated with completing the “biology MCAS prep materials” did not involve teaching any curriculum. Instead, it consisted of reviewing information the student had already been taught and making note of the areas he needed to review further.

Therefore, the parent had no basis to assert that the district was required to provide a licensed biology or special education teacher to assist with the biology MCAS.

WHEN PARENTS DISAGREE

As parent-side practitioners, we periodically confront questions about what happens when parents disagree.  Natick Public Schools, BSEA No. 2406355, 30 MSER 43 (Putney-Yaceshyn, February 7, 2024) addressed one such situation, namely, whether a school district is required to evaluate a student for special education when one legal parent requests and consents to an initial evaluation but the other legal parent rejects it.  Here, the student’s mother had requested that Natick evaluate the student, which it did.  After deeming the student ineligible for special education, the mother rejected that finding, requested further evaluation in an area apparently not initially assessed by the district, and provided her consent for the further evaluation.  The student’s father refused consent to the additional testing, initiating a hearing and requesting that Natick “cease and desist” from any further evaluation of the student.  In response, Natick moved to dismiss the father’s case, on the basis that 603 CMR 28.04(2) compels a school district to evaluate a student whenever it receives the consent of a parent to do so.  The hearing officer agreed, reasoning that the statutes and regulations bearing on student evaluation use the singular term “parent” throughout – in contrast to other sections which contain the plural term “parents.”  Thus, the hearing officer concluded, in line with prior rulings on the issue, that Natick was mandated to complete the student’s evaluation to which only the mother consented.  At least within this context, disagreements among parents are family matters not subject to the BSEA’s jurisdiction.

DISTRICT’S OBJECTION TO ACCELERATED STATUS OF THE PARENT’S HEARING REQUEST DENIED

Fitchburg Public Schools, 30 MSER 60, BSEA# 2409889 (Reichbach, March 26, 2024) provides a good example of the proper grounds for advancing a BSEA matter on an expedited basis.  BSEA Hearing Rule II(D) provides that hearings may be assigned accelerated status in the following circumstances: “(a) When the health or safety of the student or others would be endangered by the delay; (b) When the special education services the student is currently receiving are sufficiently inadequate such that harm to the student is likely; or (c) When the student is currently without an available educational program or the student’s program will be terminated or interrupted immediately.” Where only some issues in a hearing request meet the criteria above, the matter may be bifurcated to allow the qualifying issues to proceed on an accelerated track, with the remaining issues proceeding along a typical track.  Here, the guardian’s hearing request was granted accelerated status and the district challenged that, asserting that the guardian had not pled sufficient facts to support the status.

The thirteen-year-old student in this matter has Cerebral Palsy, Cortical Visual Impairment, autism spectrum disorder, severe intellectual disability, seizure disorder, a communication disorder and central hypothyroidism. He wears pull-ups and is unable to use the bathroom without assistance or notify caretakers when he needs to use the bathroom. His leg braces are attached to his hips by cable wires. He could walk, often with assistance, but when overly fatigued, unsteady, or exhibiting unsafe behaviors he utilizes a wheelchair. The student began attending the in-district Longsjo Middle School on November 21, 2023. At issue was the safety of the student and the contention by the guardian that the district repeatedly denied requests for increased safety measures related to the student’s seizure disorder. In addition, the guardian claimed that the district failed to implement plans relating to the student’s toileting, negatively affecting both his health and dignity.  Specific incidents of these included: the student’s pull-ups were not proactively checked or changed at all, potentially impacting his skin health; and arriving home with broken leg braces and red marks on his back, presumably from too much sitting despite his nutritionist’s directive that he ambulate to assist his stooling patterns, appetite, weight gain, and bone health.

The hearing officer held that if the allegations in the hearing request were true, allowing the incidents to continue could very well endanger the student’s health or safety, as well as his dignity. Because the hearing request sought a different placement, the entire hearing request remained on the accelerated track.