Commentary on Massachusetts Special Education Decisions: 2nd Quarter, 2014, by Joseph B. Green and Eileen M. Hagerty:
October 23, 2014
During the second quarter of 2014, the Bureau of Special Education Appeals (“BSEA”) issued five decisions and six rulings. In one decision (Natick), the parents won reimbursement after placing their young daughter with autism unilaterally in a private special education school. In another (Boston, #1308779), although the parents did not succeed in having their son returned to his previous full inclusion placement, they did obtain an order requiring Boston either to modify its proposed substantially separate placement or to “locate or create” a program that could meet the student’s individual needs. Another decision (“Mapletown”) concerned the location for an extended evaluation; the hearing officer ruled against the district, which had wanted to evaluate the student at a collaborative, and ruled in favor of the parents, who had requested that the evaluation take place in-district. In the two remaining decisions (Boston, #1407862 and Lynn), the hearing officers held the districts’ IEPs appropriate, which was unsurprising in view of the fact that the parents offered little effective opposition (Boston) or none (Lynn).
The rulings span a wide variety of topics, including the frequently-litigated issue as to whether another state agency should be required to participate in a BSEA proceeding (Stoughton); whether parents seeking reimbursement for a unilateral placement during the student’s 8th and 9th grade years had provided sufficient notice of a unilateral placement both to their K-8 school district and to their regional high school district (Sudbury/Lincoln-Sudbury); and whether a parent who had filed three successive hearing requests was barred from raising in his latest proceeding claims of which he had been aware at the time of the earlier proceedings, but which he had not previously raised (McAuliffe Regional Charter). Rulings also considered the statute of limitations for Section 504 claims unrelated to IDEA (New Bedford), the inability of parents to seek relief for past IEPs that they had fully accepted (Marblehead), and a challenge to the DESE’s assignment of responsibility for a special education student (Worcester/Medway).
This Commentary will focus on three decisions (Natick, Boston #1308779, and “Mapletown”) and three rulings (Stoughton, Sudbury/Lincoln-Sudbury, and McAuliffe) that we believe present the more interesting issues and lessons for practitioners.
“Systemic Inattention” to Student’s Needs Results in Reimbursement for Unilateral Placement
The decision in Natick Public Schools, BSEA #1400521, 20 MSER 112 (Byrne, 6/17/14), is a heartening one for parents. There, the hearing officer held the district to its obligations with regard to evaluation and placement under state and federal law, imposing consequences (reimbursement for the parents’ unilateral placement) on the district for certain questionable practices which, in our experience, districts employ all too often.
The student in this case was a seven-year-old girl who had a complex profile, including autism spectrum disorder, a communication disorder, significant global developmental delays, and fine and gross motor impairments. She had attended in-district programs since the age of three. Over the course of several years, the parents had provided Natick with evaluations from independent professionals who recommended more services, and more intensive services, than the district was providing. Although the district discussed the reports at Team meetings, it made very few changes to the student’s IEP as a result. Meanwhile, the parents and independent service providers pointed out numerous IEP areas in which the student was failing to make effective progress. Observations of the student’s 2012-13 preschool classroom by the student’s private speech-language therapist led the therapist to conclude that the student required a fully signing environment with 1:1 instruction. Other professionals recommended an increase in home services over the two hours per week that Natick provided, an increase in ABA instruction, and provision of a full-year program including uninterrupted services at a consistent level and location during the summer.
In the spring of 2013 Natick conducted a three-year reevaluation of the student, the reports of which “did not contain any particularly individualized service recommendations.” 20 MSER at 120. When the Team met to develop the student’s IEP for kindergarten (2013-14), the parents requested that the student be placed in a year-round program offering intensive ABA instruction within a signing environment, as the independent evaluators had recommended. The district instead proposed its “ACCESS program,” even though that program followed the same model as the preschool program, which (according to the district’s own progress reports) had produced only “limited improvement in all targeted skill areas and declines in some.” Id. The parents rejected the IEP and placed the student unilaterally at the RCS School, where she made good progress.
The hearing officer, in ruling for the parents, identified a pattern of “systemic inattention to [the student’s] identified learning needs” on Natick’s part over the course of three years. 20 MSER at 120. Many of the flaws that she described are behaviors that districts exhibit over and over, and for which they are often not held accountable. For example:
• Failure to give meaningful consideration to the recommendations of independent expert evaluators; denial of experts’ recommendations even though there are no contrary recommendations in the record. As the hearing officer observed, “[T]he type and level of educational service selected for [the student] over her three years in the Natick preschool ran counter to nearly every evaluation her Teams considered. Expert evaluators consistently recommended a higher level of service than Natick was providing or offered to provide at any time.” 20 MSER at 119. As one example, although four independent evaluators recommended that the student attend a full-year program and there were no contrary recommendations, Natick never offered more than a 4-6 week summer program with significantly reduced services. To take another instance, the student’s developmental pediatrician recommended five hours per week of home-based ABA programming, but Natick refused to provide more than two, despite the fact that “no relevant professional evaluation in the record” supported that amount. Id. at 120. For a third illustration, with regard to the program model, the hearing officer found that the district staff failed to “credibly dispute the consistent outside service provider recommendations for placement in a year round ABA based, signing, learning environment,” yet the district insisted anyway on the ACCESS program, which did not provide those elements. Id. The hearing officer found against the district and in favor of the parents on each of these issues. As she stated, “While a school district may reject an outside evaluator’s recommendation it must provide some rational basis for doing so.” Id. A district that makes arbitrary service and placement decisions that are not individualized to the student, as the district appears to have done in this case, does so at its peril.
• Failure to conduct the district’s own evaluations in compliance with state special education regulations. A district’s evaluation reports are required by law to “define in detail and in educationally relevant and common terms, the student’s needs, offering explicit means of meeting them.” 603 CMR 28.04(2)(c) (emphasis added). In other words, district evaluators are supposed to make specific educational recommendations. In our experience, this requirement is often honored in the breach. That was certainly the case in Natick, where the hearing officer found, for example, that the district’s three-year re-evaluation report “contain[ed] no recommendations or descriptions of appropriate classroom models, therapeutic interventions, staff qualifications or environmental modifications.” 20 MSER 116. As discussed above, without specific evaluations and recommendations of its own to support its proposals, the district had no basis to deny the student the programming recommended by the independent evaluators.
• Failure to tailor the student’s services and placement to her individual needs; offering what is available rather than what the student requires, or offering a seemingly random amount of service to placate parents. With regard to the summer service issue (discussed above), the lack of individualized recommendations for the amount and type of summer programming that the district proposed led the hearing officer “to conclude that Natick offered what was available rather than thoughtfully considering and planning for [the student’s] individual learning needs as is required by the IDEA.” 20 MSER at 120. The hearing officer criticized the district’s earlier offer of four hours of ABA discrete trials per week, with no expert evaluation to support that level of service, as “a seemingly random number,” proposed “to assuage the Parent.” Id. Similarly, on the issue of the proposed ACCESS placement, the hearing officer found that the district members of the Team were not even adequately familiar with the ACCESS program and that “[n]one of [the student’s] Natick service providers made any meaningful assessment of the appropriateness of the ACCESS program for [the student] for the 2013-2104 school year.” Id.
• Ignoring evidence of lack of progress; insisting on a version of the same program that has not worked over multiple previous years. The hearing officer found that the ACCESS program “continued a program model in which [the student] made little demonstrable progress.” 20 MSER at 121. The district service providers “were unable to explain how a continuation of the preschool model would provide meaningful educational benefits to [the student], particularly in light of her limited progress in preschool,” id. at 120, but proposed such a model nevertheless. The hearing officer had little trouble in concluding that the proposed program failed to provide FAPE.
• Taking a “wait and see” approach rather than providing an appropriate program immediately. At the time of the student’s transition from Early Intervention at the age of three, the district’s BCBA proposed to “’wait and see what [the student] looks like’” before providing her with ABA services, despite being “aware of the severity of [the student’s] needs as set out in the [independent evaluator’s] report and of the intensity of early intervention ABA services [the student] was then receiving, as well as of the standard research-supported intervention recommendations” for children on the autism spectrum, all of which should have signaled the student’s need for ABA. 20 MSER at 119-120. (Although this “inauspicious start” to the parent-district relationship, id. at 120, fell outside the statute of limitations, it formed part of the background of the case.) An eligible student has a right to receive FAPE immediately. It is a violation of law for a district to require a student to wait for a service or placement, or to require the student to regress or fail before she will be considered for more intensive services, or to require the student to proceed through various less-restrictive options before she will be considered for a more specialized one, if her immediate need for a particular type of service or placement is as well-supported as the student’s need for ABA was in this case.
• Investing more energy in opposing the parents in litigation than in addressing the student’s needs. The hearing officer commented that one of the Natick teachers “spent more time observing [the student] at RCS [after the parents’ unilateral placement] than she did in either observing how [the student] functioned in the [district’s] preschool program or in planning for [the student’s] transition” from preschool to kindergarten. 20 MSER at 120. The hearing officer also remarked on the district personnel’s “lack of engagement in, and curiosity about, the extensive educational services” that the parents had provided for the student while she was in-district. Id. at 120-121. If the district had devoted the same degree of attention to meeting the student’s needs while she was in the district as it did to opposing her unilateral placement after the parents had removed her, the district might well not have found itself in the position that it did.
All in all, it is refreshing to see a hearing officer bluntly identify a district’s many and varied violations of its FAPE obligations, and hold the district responsible to reimburse the parents for all expenses connected with their unilateral placement as a result. This decision should sound a wake-up call for those districts that engage in similar violations.
After a Student’s Three-Year Absence from the Classroom, the BSEA Denies the Parents’ Request for a Return to Full Inclusion, but Finds the District’s Proposed IEP Inappropriate and Issues a “Locate or Create” Order
This quarter produced two cases involving the Boston Public Schools (“BPS”): Boston Public Schools, BSEA #1308779, 20 MSER 102 (Berman, 6/13/14), and Boston Public Schools, BSEA #1407862, 20 MSER 90 (Crane, 5/14/14). In both, the parents proceeded pro se and presented no testimony other than their own. Perhaps not surprisingly, the parents failed to attain their objectives in either case.
The more interesting case, #1308779, concerned a 17-year-old student with autism who, by the time of the hearing, had been out of school for three years. His parents had removed him from his full inclusion placement at the Harbor Pilot Middle School in the spring of 2011 due to “behavioral and emotional concerns,” 20 MSER at 105, and had requested an alternate placement on a temporary basis. The parties were unable to agree on either a temporary or a permanent placement. The student remained at home, receiving home tutoring, in-home ABA therapy, and related services for various periods, while the parties continued to discuss his placement. In May 2013, the parents filed a hearing request, which they subsequently amended.
The main issue at hearing was the appropriateness of BPS’s proposed February 2014 to February 2015 IEP and its proposed placement of the student in a substantially separate program at the Boston Community Leadership Academy (“BCLA”). The parents contended that a substantially separate placement was inappropriate. They sought an order returning the student to a full inclusion placement at Harbor (the program from which they had earlier removed him). They also requested compensatory education based on BPS’s failure to deliver agreed-upon related services at times during the preceding three years and for lost ABA services that occurred when the parents refused to agree to the emergency protocols of one ABA provider or the general liability waiver of another, without which the third parties would not provide services.
There was little dispute about the student’s profile or about his need for highly individualized ABA instruction. As the hearing officer stated, “The only real dispute here is the setting in which the Student can receive FAPE.” 20 MSER at 110. The parents objected to the proposed BCLA program both because they believed that it would not be able to deliver the ABA services the student required and because they viewed it as too restrictive. BPS contended that the student needed to be educated in a substantially separate program due to “the severity and nature of [his] disabilities and his demonstrated need for highly individualized, specialized instruction.” Id. BPS pointed out, and the hearing officer credited, that “much of Student’s nominally ‘inclusive’ placement at the Harbor School, academically successful as it may have been, entailed 1:1 instruction by Student’s aide or by various therapists even when Student was seated in the general education classroom. Put another way, despite being seated with a group of other children, the record reflects Student was primarily educated by himself.” Id. at 111; cf. MA DESE, Technical Assistance Advisory SPED 2014-3: Identifying the Need for Paraprofessional Support (March 20, 2014)(characterizing use of a 1:1 aide as “a more restrictive model of service”).
The hearing officer first found that the parents “have not met their burden of showing that [BPS’s] proposal to educate Student in a small, specialized setting with inclusion opportunities is inappropriate.” 20 MSER at 111. The parents also failed to prove that placement at Harbor would be appropriate, as the record contained only a general program description of the Harbor program published by BPS, with no information as to how the student’s individual needs could or would be met there.
This case, like many others pursued by pro se parents, appears to have suffered from a lack of expert testimony. No independent evaluator testified for the parents; as far as can be ascertained from the decision, none had evaluated the student since 2011 or observed his actual or proposed program at any date. The hearing officer credited the 2011 independent neuropsychological evaluation report (which not every hearing officer might have done, given the age of the report and the absence of the expert). However, the 2011 report contained a number of statements that supported the type of specialized, substantially separate programming BPS was proposing.
The hearing officer acknowledged the importance of the parents’ emphasis on the “least restrictive environment” (“LRE”) principle. “On the other hand,” she stated, “the opportunity to be educated with non-disabled students does not cure a program that otherwise is inappropriate.” Id. at 109 (citing School Comm. of Town of Burlington v. Dep’t of Educ. of Mass., 471 U.S. 359 (1985)); see also id. at 110. Too often, school districts seem automatically to counter parents’ requests for a more specialized out-of-district placement by invoking LRE, as though that were the end of the discussion. The hearing officer’s comments in this case serve as a useful reminder to all that LRE without appropriateness does not equal FAPE.
After concluding that the parents had not met their burden of proof, the hearing officer appeared to shift the burden of proof to BPS, stating that BPS “has not demonstrated that the BCLA program . . . would be appropriate for the Student or could implement Boston’s proposed IEP.” 20 MSER at 111. The hearing officer found that, although BCLA had “numerous features which Student needs and from which he could derive meaningful benefit,” it was not appropriate for the student in its current form. Id. The hearing officer pointed out that the BCLA program was not designed specifically for students with autism, nor was it based on ABA principles. As the hearing officer observed, “Other than the assertion by a BPS witness that the teachers are experienced and knowledgeable about autism, the record provides no detail on the program’s experience or practice in serving youngsters with profiles similar to Student’s, no information on how ABA services and principles would be integrated into Student’s educational program, no detailed information about the proposed peer groupings, and no information on how Student would be truly integrated/included with his classmates.” Id. The fact that the program had “access” to autism specialists within BPS did not make it appropriate. Id.
Although the hearing officer found the BCLA program inappropriate, she held out the possibility that BPS might be able to modify it. As she stated, “[W]ere Boston able to modify the BCLA program to skillfully and meaningfully incorporate ABA principles, provide adequate BCBA oversight and ABA training to all pertinent staff, as well as explicit home-based and community based instruction as addressed in the proposed IEP, then this program might become appropriate to meet this Student’s needs.” 20 MSER at 111. She ordered BPS to reconvene the Team within ten days to determine whether it could so modify the BCLA program. If BPS determined that it could not, she ordered that BPS “locate or create a public or private program that will meet the criteria set forth in this Decision” (including the recommendations in the 2011 neuropsychological report), to be available for the student as of the start of the 2014-2015 school year. Id.
The hearing officer denied the parents’ request for compensatory services, stating that “any gaps in services were not the result of Boston’s disregard of its responsibilities toward Student,” 20 MSER at 111, and that delays had resulted from the parents’ refusal to sign the waiver and emergency protocols that third-party providers of home-based services had demanded. The hearing officer failed to consider whether the provision of services that the FAPE standard apparently required (since parties agreed on the need for the services), and which are ultimately the responsibility of the school district, may be conditioned on the parents’ consent to whatever legal documents may be demanded by third-party vendors. Equally disturbing is the fact that, although the hearing officer found inappropriate the BCLA program that the district proposed in February 2014 and the pro se parents had articulated (perhaps inartfully) a claim for compensatory education, she ordered no compensatory relief for the period of approximately four months (February 2014 until mid-June 2014, when the decision issued) during which the inappropriate BCLA program was the only one being offered. Perhaps the hearing officer considered that the student’s home-based services during that time were sufficient to provide him with FAPE.
Curiously absent from the decision was any analysis of stay-put. It appears that the parents invoked the student’s stay-put right to return to his last agreed-upon placement, which was the full inclusion classroom at Harbor, 20 MSER at 109, but there the discussion ends. Again, any failure to press the issue may have been due to the parents’ pro se status. Had they moved pursuant to 20 U.S.C. §1415(j) and 603 CMR 28.08(7) for an order requiring BPS to return the student to Harbor pending the outcome of the dispute, stay-put principles would seem to have required such relief.
Under What Circumstances Will a State Social Service Agency Be Required to Participate in a BSEA Case?
When a student needs a residential placement in order to access his or her education, school districts will often look to join a state social service agency to the proceeding, pursuant to M.G.L. c. 71B, §3 and 603 CMR 28.08(3). In such a case, the district often argues that the residential portion of the placement is not needed for educational reasons and is therefore the responsibility of the state agency, not the school district. Parents then have to make a tactical decision as to whether to seek or support the involvement of a state agency in a special education proceeding.
Many BSEA decisions involving residential placements have found that a student’s educational and residential needs are “inextricably intertwined,” and thus the school district is responsible for both the day and residential portions of the placement. See, e.g., Amherst-Pelham Reg’l Sch. Dist., BSEA #12-1264, 18 MSER 187 (2012); King Philip Reg’l Sch. Dist., BSEA # 12-0783, 18 MSER 20 (2012); Sch. Dist., BSEA #12-0132, 18 MSER 1 (2012); Douglas Pub. Sch., BSEA #11-1312, 16 MSER 410 (2010); Hingham Pub. Sch., BSEA #10-0592, 15 MSER 282 (2009); Fall River Pub. Sch., BSEA #09-6962, 15 MSER 189 (2009); Boston Pub. Sch., BSEA #04-1509, 10 MSER 256 (2004); Lunenburg Pub. Sch. BSEA # 05-0799, 10 MSER 518 (2004). However, the Department of Children and Families (“DCF”), the Department of Developmental Services (“DDS”), and the Department of Mental Health (“DMH”) do in fact provide residential placements in some situations, consistent with their regulations. Therefore it may be possible to resolve a dispute over residential placement more expeditiously if an agency can be persuaded to cost-share with the school district.
There are some potential disadvantages for the parents in bringing a state social service agency into the mix. Relying on funding from an agency can limit the range of options for placement to a relatively small number of programs with which the agency contracts, instead of including all potentially appropriate DESE-approved special education residential programs. By accepting agency funding the parents may also lose certain procedural rights (e.g., stay-put) that they would have under IDEA, but that do not apply to social service agencies.
In Stoughton Public Schools, BSEA #1406800, 20 MSER 73 (Crane 4/3/14), the parent, who sought a residential placement for her 13-year-old son, filed a hearing request not only against her district but also against DMH and DDS. DMH moved to dismiss on the grounds that it was not a necessary party to the BSEA proceeding. DMH pointed out that, although the parent had applied to DMH to have the student found eligible for DMH services, the parent had subsequently withdrawn that application after DMH told her that the student did not meet DMH eligibility criteria.
With no formal determination as to DMH eligibility and no application pending, the hearing officer concluded that DMH should be dismissed. As the hearing officer stated, M.G.L. c. 71B, §3 permits a hearing officer to require an agency such as DMH to provide services, but only “’in accordance with [DMH’s] rules, regulations and policies.’” 20 MSER at 75. Because DMH rules, regulations and policies allow DMH to provide services only to individuals whom it has found eligible, obtaining a decision on eligibility from DMH was a necessary first step; in the absence of such a decision, the case against DMH could not proceed. (The hearing officer’s decision did not preclude a request by the parent to join DMH as a party again if the student were later to be found eligible.) The lesson for parents is that, if the parents want DMH, DDS, DCF, or any other state agency to be a party to a BSEA proceeding, they will be wise to comply with all of that agency’s prerequisites before bringing a proceeding against that agency at the BSEA or moving to join the agency as a party.
A Dispute as to Where an Extended Evaluation Would Take Place
“Extended evaluations” are not a part of the federal special education law (IDEA). However, Massachusetts special education regulations provide that, “[i]f the Team finds the evaluation information insufficient to develop an IEP, the Team, with parental consent, may agree to an extended evaluation period.” 603 CMR 28.05(2)(b). The location where the extended evaluation takes place is not an IEP “placement” and the evaluation cannot exceed eight school weeks. 603 CMR 28.05(2)(b)(4), (5).
The dispute in “Mapletown” Public Schools, 20 MSER 84, BSEA #1406097 (Berman, 5/2/14), was not whether the student needed an extended evaluation, but where that extended evaluation would take place. The school district wanted the BSEA to order that the student, who been struggling with behavioral outbursts that were interfering with his education and causing safety concerns, be sent to a setting outside of the school district because of the complexity of the student’s issues. The district suggested any of three collaboratives for the extended evaluation. The parents did not object to a 40-day extended evaluation, but they were adamantly opposed to removing the student from public school for that purpose.
The hearing officer stated that the district, as the party seeking to change the status quo, had the burden of proof on the appropriateness of the location it sought. 20 MSER at 89 n.7. The parents argued, and the hearing officer agreed, that the district had two programs that appeared to be appropriate locations for the extended evaluation. The hearing officer noted that “no representative from either program testified at the hearing, or provided written documentation of their respective programs’ inability to accommodate Student” for the extended evaluation. Id. at 90. The hearing officer observed that the student had spent his entire educational career to date in full inclusion settings. She found that the district failed to prove that it was necessary to perform the extended evaluation in the more restrictive collaborative setting. She therefore ordered that the extended evaluation be done within the district.
We have noted an increase in the use of the extended evaluation procedure over the past several years. This decision underscores the need for parents to look carefully at any proposal for an extended evaluation, including its length and location. In the event of a dispute over the proposed evaluation, the district will have the burden of proving that its proposal is appropriate.
Notice of a Unilateral Placement Is Complicated by the Student’s Transition from a K-8 District to a Regional High School District
Parents who want to seek reimbursement for a unilateral placement need to be aware of the notice requirement in the IDEA. Even if the parents can prove that the school district did not provide FAPE, a hearing officer can reduce or deny reimbursement if the parents do not provide advance notice of their “intent to enroll their child in a private school at public expense.” 20 U.S.C. § 1412 (a)(10)(C)(iii)(I). The “Limitation on Reimbursement” section of the statute, 20 U.S.C. § 1412 (a)(10)(C)(iii), informs parents of the two ways in which notice may be given. That section specifies that reimbursement may be reduced or denied
(aa) at the most recent IEP meeting that the parents attended prior to removal of the child from the public school, the parents did not inform the IEP Team that they were rejecting the placement proposed by the public agency to provide a free appropriate public education to their child, including stating their concerns and their intent to enroll their child in a private school at public expense; or
(bb) 10 business days (including any holidays that occur on a business day) prior to the removal of the child from the public school, that parents did not give written notice to the public agency of the information described in (aa)[.]
In this quarter’s notice case, Sudbury Public Schools and Lincoln-Sudbury Regional School District, BSEA #1403509, 20 MSER 99 (Oliver, 6/9/14) , the parents withdrew the student from Sudbury Public Schools after 7th grade and sought reimbursement for private school tuition for 8th and 9th grades, naming both Sudbury (where she would have attended 8th grade) and Lincoln-Sudbury (where she would have attended 9th) as parties. Each district filed a motion for summary judgment, based largely on the parents’ alleged failure to give proper notice of the unilateral placement.
The hearing officer denied both motions. He found that, although the parents had not provided written notice to either district, they had rejected Sudbury’s proposed placement for 8th grade and that they had clearly requested a residential placement at a Team meeting prior to making the unilateral placement. Therefore, the hearing officer stated, it appeared that they had given Sudbury notice that complied with section (aa) above. He denied Sudbury’s motion for summary judgment on that basis.
As for 9th grade, Lincoln-Sudbury asserted that that it had had no knowledge that the student even existed. While there was no dispute about the lack of direct notice by the parents to Lincoln-Sudbury, Sudbury averred that it had given oral and written notice about the student to the regional district. The hearing officer concluded that this was a disputed issue of material fact that precluded entry of summary judgment as to Lincoln-Sudbury.
The hearing officer pointed out that the notice statute provides that a hearing officer may reduce or deny reimbursement to the parents if the notice was not sufficient, but that such a result is not mandatory. The hearing officer said if the parents succeeded in proving that one or both of the districts failed to offer a FAPE to the student, then he would consider the circumstances and the adequacy of the notice and decide whether he would reduce or deny reimbursement. Other hearing officers have held that they would consider whether the school district was prejudiced by inadequate notice when deciding whether to reduce or deny reimbursement to parents. See, e.g., Sutton Pub. Sch., BSEA # 09-7983, 16 MSER 18, 30-31 (2010).
We point out that, in any situation where more than one district may conceivably be responsible for the student, it is safest to notify both districts. This situation may arise not only when the student is moving from a K-6 or K-8 district to a regional district, as in this case, but also when a program school such as a charter or vocational school is involved, or where parents are moving from one district to another or reside in different districts. Also, although the statute does not require repeated notice in subsequent years of a unilateral placement, it may be prudent to give such notice, particularly where district responsibility is shifting, as it did in this case. Lastly, parents who are seeking reimbursement from the school district should not “withdraw” or “unenroll” the student from public school, as that action could imply that the parents are no longer looking to hold the district responsible for the student. The parents’ notice should make clear that FAPE is at issue and that the parents intend to hold the district liable for all costs connected with the unilateral placement.
Parent’s Claim Is Not Barred by Failure to Assert It in Two Previous Proceedings, But Hearing Officer Requires Amendment of Hearing Request to Include All Remaining Claims
The parent’s hearing request in McAuliffe Regional Charter Public School District, BSEA #1404110, 20 MSER 81 (Figueroa, 4/25/14), included a claim for compensatory services for failure to provide speech-language therapy to the student during the winter of 2011-2012. While the hearing request was the third one that the pro se parent had filed since that date, it was the first to assert this particular claim. The district moved to dismiss on various grounds, including a res judicata theory: that the parent had waived the right to bring the compensatory claim because the parent could have raised that claim in the earlier proceedings, but had not done so.
The hearing officer refused to dismiss the compensatory claim on this ground. As she stated, “While Parent’s multiple filings may be an inefficient use of administrative resources, he is not barred from bringing this issue now.” 20 MSER at 84. She did enter an order requiring the parent to amend his hearing request to include “all remaining issues falling within the purview of the BSEA that he may have against [the district].” Id. (emphasis in original). She also ruled that the fact that the parent had raised the compensatory services issue before both the DESE’s Program Quality Assurance Office (“PQA”) and the U.S. Department of Education’s Office for Civil Rights (“OCR”) did not bar the parent from proceeding against the district on the same issue at the BSEA.
We think that the hearing officer reached the right result. There was nothing in either the BSEA Hearing Rules or the Standard Adjudicatory Rules of Practice and Procedure, 801 CMR 1.00, that would have notified the pro se parent of any requirement to group all of his claims in one proceeding. Although it generally does make more sense to bring all claims in one action than to litigate piecemeal, there can be situations where a party either chooses to assert claims in separate proceedings or does so inadvertently. In this case, the hearing officer reached a sensible result, avoiding the drastic consequence of dismissal while at the same time ensuring (through her order requiring the parent to amend the hearing request) that the proceedings would not multiply any further.