Overview

Commentary on Massachusetts Special Education Decisions: 3rd Quarter, 2014, by Marie F. Mercier and Daniel T.S. Heffernan:

March 05, 2015

INTRODUCTION

This quarter’s ten decisions expound upon such familiar areas as public funding for private placements, but also address emerging areas such as stay-put and joining state agencies to BSEA proceedings. Acton Public Schools, BSEA# 1405736, 20 MSER 176 (Figueroa, 2014), reiterates the responsibility of school districts to address a student’s emotional and social, and not just academic, needs. Another decision, Greenwood, BSEA #1403564, 20 MSER 130 (Figueroa, 2014), provides an additional illustration of why a hearing officer would find one side’s expert more credible than the other’s. Three decisions address the high bar that parents must clear to get public funding for private placements: Fall River Public Schools and Lionel, BSEA #1406696, 20 MSER 151 (Byrne, 2014); Boston Public Schools, BSEA #1400688, 20 MSER 157 (Putney-Yaceshyn, 2014); and Acton. While tight school budgets and internecine battles among governmental entities over which is responsible for providing essential services to students remain the norm, one trend that continues in the BSEA is moving to join state agencies. Two decisions this quarter involve district attempts to join state agencies: Belmont Public Schools, Massachusetts Department of Mental Health and Malmi, BSEA #1408679, 20 MSER 127 (Byrne, 2014) and Fall River Public Schools, BSEA #1406929, 20 MSER 128 (Oliver, 2014) (district attempted to join DMH and the Department of Developmental Services). Two decisions made the concept of stay-put more elastic: Abington Public Schools, BSEA #1407763 (Figueroa, 2014), where no party disputed that the last agreed upon IEP placement was inappropriate, and Georgetown Public Schools and Landmark School, BSEA #1408733, 20 MSER 169 (Oliver, 2014), where a private special education school sought to expel a student for violations of its drug policies. Included also is a case regarding the assignment of school district responsibility for a student. Worcester Public Schools, BSEA #1404967, 20 MSER 176 (Berman, 2014).

Out-of-District Placement Appropriate where District Failed to Meet Student’s Emotional and Social Needs

In Acton Public Schools, BSEA# 1405736, 20 MSER 176 (Figueroa, 2014), the parents prevailed in securing a placement at Learning Prep School (“LPS”) despite the hearing officer’s finding that the student was making academic progress in his public school placement. Hearing Officer Rosa I. Figueroa emphasized that the IEP must address all of a student’s special needs whether they were academic, physical, social or emotional. She concluded that the in-district programs had failed to meet the student’s emotional and social needs.

The hearing officer placed great weight on the credibility of the parents’ expert who had followed the student over the course of many years. The expert’s initial evaluations when the student was in the early grades of elementary school supported the district’s proposed partial inclusion program, but warned that a more specialized learning environment might be required in the future. The expert evaluated the student during third grade and noted that while the student had made some progress, the gap between him and his same age peers was widening. The expert warned that without required interventions, the student’s clinical picture would likely deteriorate further. By the fall of fifth grade, the expert reported that the gap between the student and his peers had widened even further. He recommended a combination integration and pull-out program with direct services outside the general education classroom for reading, writing, math, speech and language, occupational therapy, and social pragmatics. The expert emphasized that the student needed to develop his social pragmatic skills because he was struggling to understand subtle nuances of social interaction, compromising his ability to advance socially with typically developing peers.

By sixth grade, the student had not developed any meaningful friendships despite the parents’ repeated requests to help him develop one or two true friendships. Observations showed that the student had minimal interactions with his peers in school. Outside of school the student had no friends and engaged in solitary activities. Supported by their expert, the parents placed the student at LPS for seventh grade. Within one year of his arrival at LPS, the student was not only making academic gains, but was also making marked social and emotional gains.

The district took the position that the student had made social gains in its program and would have made more in its proposed program. This position was undermined by the hearing officer’s careful parsing of the district’s own reports. She noted that all the objectives under the student’s social skills goal (such as, “student shall have a conversation with three volleys in four out of five opportunities”) remained the same in the IEPs proposed not only for sixth and seventh grades but also for eighth grade. The district argued that its proposed IEP for eighth grade did provide the student with socially appropriate peers. Parents’ expert reviewed the IEPs of the students that the district proposed as socially appropriate peers and found them to be inappropriate, noting that the group presented with a large differential in cognitive functioning (as much as 20 to 30 point IQ differential) and with differing interests.

The hearing officer ordered the district to reimburse the parents for LPS tuition and transportation for seventh grade and for the remainder of eighth grade through January 2015, the ending date of the student’s IEP. She ordered the Team to convene prior to the ending date of the IEP to consider his placement for the remainder of eighth grade and ninth grade.

This decision is instructive in setting forth the long (and no doubt expensive) course that the parents needed to steer to meet the burden of proof required to support an out-of-district placement. The parents had obtained seven expert evaluations and follow-ups over the course of eight years and arranged for a number of observations of the districts’ programs and two observations of the student in his LPS seventh grade program to document his needs and progress. The parents’ expert first observed the LPS program in October noting that the student had made strides in his organization skills and personal responsibility. However, he suggested another observation after the student had an appropriate period of adjustment because of lingering academic and social difficulties. Specifically, he was concerned that the student was demonstrating an inability to self-advocate and instead was waiting for the teacher to prompt him due to the high level of adult support he had received in the district’s program. Upon the second observation the following spring, the expert observed discernable gains, including the ability to self-advocate in class. The student interacted with others appropriately and for the first time engaged in reciprocal friendships with some of his LPS peers. It should be noted that, by making unilateral placement in seventh grade, the parents were able to obtain the testimony of the LPS personnel to support their case. They explained the LPS program and the progress that the student made in the year he was there.

This case demonstrates the persuasive power of the testimony of a professional who has followed the student over a period of years, in this case performing both evaluations and observations. The hearing officer found that the expert possessed a solid understanding of the student and his social emotional needs. The expert was able to offer specific examples of how the student’s social emotional deficits impacted his development. The expert’s credibility was further enhanced by his balanced view of the staff observed in Acton’s program, referring to some as “wonderful.” This case is also instructive of the advantage parents can gain by making a unilateral placement and giving the student time to settle in and adjust to the placement before filing a hearing request. The parents can utilize the testimony of their chosen placement’s staff and, importantly, can point to the student’s actual progress, academically, socially or emotionally, compared with that made in the district’s program.

District’s Admission that Its Program Could Not Provide Meaningful Progress without the Parent’s Home Instruction and Lack of Objectivity of District’s Consultant Help to Support Parents Request for Reimbursement of Carroll Placement

As in most placement disputes, the credibility of the experts is paramount. The decision in Greenwood, BSEA #1403564, 20 MSER 130 (Figueroa, 2014), highlights the importance of hiring experts who are not only knowledgeable about the student, but are fair and balanced in their testimony. An expert who appears to exaggerate or to lack objectivity in assessing a program can doom that party’s case. The nine-year-old student in Greenwood had significant language learning disabilities, serious reading deficits, and ADHD. He had been receiving special education services since the age of one. While demonstrating a solidly average IQ score, the student struggled with rote learning, including recognizing letters and numbers. In the spring of kindergarten, his parents began to supplement the district’s services with private Orton-Gillingham (“O-G”) tutoring twice a week. During first and second grade (2011-2012 and 2012-2013), the student participated in a partial inclusion program in the district.

The district’s three-year evaluation in the fall of 2012 when the student was in second grade evidenced that the student had high cognitive abilities but was still an emergent reader working on basics in all areas of reading. Nonetheless, the district proposed continuing the same partial inclusion program he had in first grade. At the parents’ request, the district agreed to modify the IEP to include 1:1 tutoring in his literacy pull-out.

In December, the parents sought an independent neuropsychological evaluation. The parents shared the evaluator’s report with the district in March 2013 and the expert attended the resulting Team meeting to explain her report. She noted significant discrepancies between the student’s neurocognitive abilities and his poor reading skills. The student’s receptive language deficits hampered his ability to consistently attend, follow, understand, retain, and implement instructions. She opined that he could be expected to continue to struggle with accurately recording assignments and with taking notes from classroom discussions, from the board, or from text books. She warned that if the student’s reading skills were not remediated he could face a lifelong disability. She opined that student had not made effective progress in reading despite all the interventions since kindergarten and recommended placement in a language-based classroom that allowed him to access grade level work with peers who had similar cognitive abilities.

At the Team meeting in March 2013, the director of special education told the parents that Greenwood did not have a language-based classroom, but could meet the student’s needs through its “language based team.” The “language based team” supported students inside and outside the regular education classroom using small group/whole group instruction for students requiring language based instruction. The Team did propose an amendment, adding one additional pull-out for ELA services and additional accommodations such as a scribe, check-ins for comprehension of instructions, modified testing, and additional time to complete assignments. The parents rejected the IEP Amendment and pursued the Carroll School as an option for their son. After providing notice to the district, the parents unilaterally placed the student at the Carroll School for third grade.

In June 2013, the parents retained an expert with a master’s degree in reading language and learning disabilities. The expert was experienced, having evaluated over eight hundred language-based learning disabled children in her career. She reviewed the student’s records, including past evaluations, observed the student at Carroll, observed Greenwood’s proposed program, and conducted a formal assessment. She found that the student was performing between one and a half and two and a half years behind his same age peers in reading, spelling, and written expression. He was also a year behind in math. She expressed concerns over his reported performance in Greenwood’s progress reports due to her assessment’s finding that he was unable to apply the skills he had reportedly mastered. She conceded that the student had made some limited progress but noted regression in other areas.

When the district learned that the parents had made a unilateral placement, they reconvened the Team. The resulting IEP continued the partial inclusion program, but increased the pull-out services. The hearing officer, however, was critical of Greenwood’s failure to specify at the Team meeting or in the resulting IEP the particular classroom and program offered for student at the meeting. This left the parents with insufficient information to access the program the district was proposing. It appeared that the district was also confused about which substantially separate classroom the student would have for pull-outs.

Aside from its own staff, Greenwood relied on the expertise of the outside educational consultant. The consultant observed the student at Carroll, an observation that the hearing officer described as “grim.” The hearing officer noted that the consultant struggled to say anything positive about the Carroll’s program. In contrast, the consultant found the Greenwood program to be stellar and could not think of anything she would recommend to improve it. Such black and white comparisons compromise an expert’s credibility. In this case, the consultant’s credibility was further compromised because she had developed the Greenwood program, had trained, mentored, and supervised many of the staff, and had at least a potential financial interest in the success of the program because she held it out as an exemplar for other districts. Ultimately, the hearing officer found her testimony to be unreliable as to the appropriateness of Carroll or Greenwood’s program for the student. In contrast, she credited the reports and observations of the parents’ educational specialist as balanced and reliable.

The parents’ position that the student had not been making effective progress was bolstered by the district’s reading specialist. The reading specialist admitted that the student was unable to make meaningful progress in reading solely with the support offered by the district. Previously, the mother had been able to provide intensive home instruction working with materials supplied by the reading specialist. Once she notified the reading specialist that she could no longer continue to provide this support, the student’s progress declined noticeably. There was no suggestion that the parent withdrew this support for tactical reasons, which would have cast the parent in an unfavorable light, and helped to establish that the student was not making effective progress as a result of the school’s program.

The hearing officer ordered reimbursement for the 2013-2014 school year and through September 29, 2014, the end of the IEP period. However, she gave Greenwood the opportunity to create a small-group language-based program for the remainder of the 2014-2015 school year. If Greenwood did not, or could not, develop a program consistent with the recommendations of parents’ neuropsychological expert for the remainder of the 2014-2015 school year, the hearing officer ordered the district to support student’s placement at Carroll or to locate another language-based program.

Unilateral Placement Reimbursement and Prospective Funding Denied

The student in Fall River Public Schools and Lionel, BSEA #1406696, 20 MSER 151 (Byrne, 2014), was an eight-year old with developmental delays, autism spectrum disorder, and health challenges. In January 2012, the student had begun attending public school on an IEP that provided placement in an inclusion kindergarten class with some small group pullout instruction. For first grade, the parent’s private evaluator recommended a regular class with a 1:1 or 2:1 aide and that ABA methodology be used. The parent accepted the Team proposal for placement in a substantially separate classroom designed for students with ASD. During first grade, the student was aggressive and non-compliant at times and was even restrained on two occasions. Pursuant to a functional behavioral assessment, a behavior support plan was implemented. The vice principal, with whom the student had regular contact through the year, testified that his behavior improved significantly and steadily. With the parent’s assent, this placement was continued into second grade. Parent’s expert reevaluated the student in July 2013, before his second grade year, and found improvement in all areas of intellectual, academic, attentional, behavioral, and social functioning. She recommended that his program include a 1:1 aide trained in ASD and a highly structured ABA behavior plan.

A key, but not unusual event, occurred shortly after the student began the 2013-2014 school year: the lead teacher in the substantially separate classroom resigned. A combination of short-term and long-term substitutes were assigned to the classroom. The parent claimed that the student was thereafter not making effective progress and was not receiving appropriate services. In response to this staffing change, the school introduced numerous additional supports to the classroom: the ASD specialist increased her time in the classroom; weekly staff meetings were held; all staff attended monthly ASD trainings; and the math and reading coaches provided more direct services to the students in the class and trainings to staff. Numerous staff testified at hearing that the student continued to make progress and he appeared unaffected by the staffing changes. They testified that he was an active participant in all areas of his program, had no behavioral difficulties, and was meeting his IEP goals.

The student did not attend school at all from December 2013 until May 2014, when he was unilaterally placed at the Meeting Street School in Rhode Island. Even before December, the student had significant attendance difficulties: in the first three months of the 2013-2014 school year, the student had fifteen absences and eleven tardies. The parent did not offer any medical or other reason that kept him out of school. She did not request any home educational services and the student went completely without educational services from December 2013 to May 2014. Fall River’s attendance team reached out to the family and, through formal meetings and transition plans, sought to bring the student back to school.

It is often said that BSEA decisions are predicated on how reasonable the parties appear. Losing the lead teacher in a special education program can clearly strike at the heart of the effectiveness of the program. However, teacher resignations are not uncommon, and the key here was how Fall River responded to this challenge. By the detailed and credible testimony and documentary evidence presented, it appeared that Fall River met this challenge and the staffing change did not negatively impact the student’s progress. By contrast, it is equally clear that the parent’s actions cast her in an unfavorable light with the hearing officer. Removing a student from school and then providing no alternative educational services is an extreme action, and will only be viewed as reasonable if there is expert support for extracting that student, some credible evidence that keeping the student in school will cause serious damage, and all efforts made to provide alternative educational services to the student. There was none of that here. The hearing officer’s pique at the parent was clearly manifest in her pointed comment about the parent’s credibility: “On the other hand the testimony of Ms. L. was internally inconsistent and not supported by the documentary evidence or corroborated by other witnesses. I therefore do not assign her testimony significant weight.” Id. at 156, n. 5.

Effective Progress Found Even Though the Student Did Not Meet Benchmarks and Scored Poorly on the MCAS

 

Boston Public Schools, BSEA #1400688, 20 MSER 157 (Putney-Yaceshyn, 2014) demonstrates that a student’s failure to meet the benchmarks established in the district’s IEP and low MCAS scores may not, in and of themselves, be dispositive of the key issue of lack of effective progress. The twelve-year-old student had ADHD, visual impairment, learning disorder NOS, and Visual Processing Disorder. He attended three different school placements in the three years prior to the hearing. Boston admitted that the student had not met his IEP goals and the parent contended that this and his warning score on both the English language arts and math portions of the MCAS established that the student was not making effective progress. The parent sought prospective placement at Learning Prep School in West Newton, Massachusetts. In support of her position, the pro se parent submitted a year-and-a-half-old neuropsychological evaluation and a more contemporaneous observation report by a masters level educator. Neither of these experts testified at hearing. In fact, the parent was the only non-school witness at the hearing. In addition, the neuropsychological evaluation did not address the key question of how much progress the student would be expected to make given his profile. The observation report was accorded little weight by the hearing officer because the observation was only two hours long, failed to specify what records were reviewed and, perhaps most significantly, because a Boston witness who “provided credible testimony and was subject to cross examination” testified that the observer had exaggerated the reported level of class disruption. In response, Boston (which had two attorneys and two law clerks in attendance at the hearing) presented ten witnesses who worked with the student. In the hearing officer’s view, they presented overwhelming evidence that the student had made great progress, albeit short of his IEP goals. The hearing officer held that Boston’s program provided FAPE but ordered slight modifications to the IEP to include a consult with a teacher of the visually impaired regarding large print materials and counseling to address the student’s self esteem issues.

Clearly, the parent was outgunned in this hearing and her case was fatally undermined by the lack of witnesses at trial. However, we do believe that the hearing officer ascribed too little significance to Boston’s failure to meet IEP benchmarks. As to what progress the student should have been expected to make, aren’t the benchmarks created by district an important assessment of that and the failure to meet these benchmarks strong evidence of lack of progress? See, Lincoln Public School and Boston Public Schools, BSEA #114678, 17 MSER 95 (Figueroa, 2011) (ineffective progress found when student failed to meet the goals and objectives of her IEP) and, in contrast, Uxbridge Public Schools, 16 MSER 388 (Crane, 2010) (the fact that the student has met the goals of the IEP does not establish effective progress).

Will DDS and DMH Join the Party?

The BSEA is authorized to assert jurisdiction in appropriate situations over other state agencies pursuant to MGL c. 71B, §3 and 603 CMR 28.08(3). That law and associated regulation empower hearing officers to join state agencies if services from those agencies may be necessary to provide “complete relief” to the student. Joinder is appropriate in situations where the student will only be able to access or benefit from 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 human services agency. The overarching mandate of MGL c.71B, §3 is to ensure that a single agency, the BSEA, is empowered to determine all necessary services for a child in one proceeding. However, the BSEA may only act in accordance with the joined human services agency’s own rules, regulations, and policies.

The parent in Belmont Public Schools, Massachusetts Department of Mental Health and Malini, BSEA #1408679, 20 MSER 127 (Byrne, 2014) sought placement of her daughter in a therapeutic residential school. Belmont in turn moved to join DMH pursuant to BSEA Hearing Rule IJ, which the parent did not oppose. Belmont agreed that the student required residential placement, but for “clinical” and not “educational” reasons, and that complete relief was therefore impossible without DMH’s involvement. The teenage student had been diagnosed with serious emotional disability and learning, behavioral, and social challenges since early elementary school. She had been on an IEP since kindergarten and had been hospitalized numerous times since 5th grade, including when the hearing request was filed. In 2012, DMH found her eligible and thereafter had offered an array of services to the family and student, as well as participated in IEP meetings and treatment planning. Since the middle of the 2011-2012 school year, the district had placed the student in the day program at the Germaine Lawrence School, an approved full-year private school that also offered residential programming.

The criteria for joining DMH was clearly met in this situation. DMH had longstanding involvement in the student’s services and its experience would be critical in determining what array of special education and ancillary services from DMH might be needed. Therefore, the hearing officer allowed the motion to join DMH.

In Fall River Public Schools, BSEA #1406929, 20 MSER 128 (Oliver, 2014), the district sought to join DMH and the Department of Developmental Disabilities (“DDS”) to proceedings initiated by a parent seeking placement in a residential therapeutic school. The sixteen-year-old student had significant emotional, behavioral, cognitive and learning challenges, and highly sexualized and aggressive behavior. Beginning in May 2013, and continuing to the time of the hearing on the motion, the student had resided at the Merrimack Center (“Merrimack”), a locked Behaviorally Intensive Residential Treatment Program (“BIRTP”). DMH was funding Merrimack and while Fall River was responsible for his IEP, the student was receiving his educational services from the Department of Early and Secondary Education’s (“DESE”) Special Education in Institutional Settings (“SEIS”) division. Merrimack recommended a residential therapeutic school placement for the student. Fall River rejected this recommendation and instead offered day placement at Bradley School (“Bradley”), an approved therapeutic day school in East Providence, Rhode Island. The student had previously attended Bradley, but his attendance had been intermittently interrupted with a string of psychiatric hospitalizations.

DDS opposed joinder on the grounds that the student had never applied for DDS services, and its own regulations prohibited the provision of residential services to anyone younger than eighteen years of age. Since the hearing officer must apply an agency’s own regulations, she agreed that there was no basis for joining DDS.

Prior to DMH funding the student’s placement at Merrimack, it had found the student ineligible for DMH services because he did not have a psychiatric disorder that under its regulations would qualify him for services, since his primary qualifying diagnosis was not a psychiatric disorder, but rather Pervasive Developmental Delay – Not Otherwise Specified (PDD-NOS) and cognitive impairment. The Parent had not appealed this DMH denial of services. Regarding DMH funding Merrimack, DMH had only authorized the placement at Merrimack “by exception” due to the student’s unsafe situation and serious behavioral difficulties. Therefore, the hearing officer also denied the motion to join DMH.

While this decision does not leave the student without resources for funding the recommended program, and we have no quarrel with the hearing officer’s application of law and regulations to the facts of this case, we lament these continued games of “hot potato” among governmental entities involving students with significant needs. Clearly, all the available resources and expertise should be brought to bear to help school-aged children regardless of what public budget is tapped and an entity, such as the BSEA, should have expanded jurisdiction and authority over all relevant state agencies that may be obligated to provided services to school-aged students.

From our experience handling numerous cases seeking 24/7 therapeutic placements, where agencies such as DMH or the Department of Children and Families (“DCF”) are involved, we offer this note of caution – it often involves the bitter and the sweet. While it makes sense for families to welcome funding and resources from all sources and avoid the risk and cost of pushing through to a decision by the BSEA on whether the school district should be fully responsible, the involvement of state agencies can come with limitations and strings attached. For example, DMH or DCF may offer to provide residential services through placement in one of its stand-alone group homes, which are not integrated with therapeutic schools – a problem for students who need all-waking-hour services in a single therapeutic milieu where all service providers are focused on the same goals, using consistent strategies, and providing the same supports and accommodations. Moreover, a “stand-alone” group home facility is likely, due to a policy adopted by DCF and DMH a few years ago, to have a mixed population of both DCF and DMH clients, making it highly possible – given the variant missions of those agencies – that the peer grouping will be inappropriate. Also, even if one accepts placement in such a facility, the missions and mandates of the state agencies do not necessarily align with and may conflict with the mission and mandate of IDEA. That difference often leads to the state agency pressing for termination of the residential service before a return to a less restrictive environment would be appropriate under IDEA. Finally, once a student is placed in a DCF or DMH residential facility, there can be significant battles over whether the student has stay-put rights to the services or placement provided by the agency. In our opinion, stay-put rights should be applied in virtually any case where a BSEA proceeding is initiated to establish a need for a residential placement in order to make effective progress and where a state agency has been providing the student with residential services. See Lowell Public Schools and Mass. Dept. of Children and Families, BSEA # 12-1912, 17 MSER 322 (Crane, 2011).

Stay-Put When the Last Agreed Upon Placement is Inappropriate

In Abington Public Schools, BSEA #1407763, 20 MSER 198 (Figueroa, 2014), the divorced parents were at odds over the appropriate placement for their son, who at the time of the decision was fifteen years old and had Autism Spectrum Disorder. The Father did not attend a team meeting at which the League School was proposed as the appropriate placement for the student. The out-of-district coordinator, apparently unaware of the Team’s designation of the League School, proposed placement at South Shore Educational Collaborative (“South Shore”). On April 2, 2014, Abington issued an IEP with South Shore as the placement and on April 10, 2014, the father accepted that IEP. On April 17, 2014, the mother rejected the South Shore placement and filed a hearing request seeking placement at the League School. At the time of the BSEA filing, the student was still in Abington. However on May 1, 2014, the student began attending the South Shore Educational Collaborative. In response to the mother’s hearing request, Abington clarified its position and stated that it recommended placement at the League School, where the student was subsequently accepted. Prior to the full hearing, the father filed a Motion for Clarification of Stay-put. Federal and state law mandate that students remain in their “then-current” educational placement during the pendency of any dispute unless parents and the school district agree otherwise. 20 U.S.C§1415(j); 34 CFR 300.518(a); G.L. c.71B §3; 603 CMR 28.08 (7). Here, the student was still in Abington at the time of the hearing request and therefore that was technically his stay-put placement. All parties agreed, however, that Abington was an inappropriate placement for the student. The mother sought placement at the League School during the pendency of the hearing to avoid disruption to the student having to transition from South Shore to Abington and then to the League School if she prevailed. However, such a determination at the preliminary stage would have been premature and contrary to stay-put law. While a strict application of stay-put would require that the student attend the inappropriate Abington program, this was not, however, where the student actually had been under the IEP accepted by the father. The hearing officer held that the purpose of stay-put was to leave the student undisturbed while the educational programming dispute was resolved and determined that South Shore was the stay-put placement. This is clearly a case where the hearing officer was motivated by the equities of the unusual situation and sought to avoid transferring the student to a placement that all parties maintained was inappropriate. It is our hope, however, that this decision is not seen as precedent supporting the proposition that a student’s stay-put is where s/he is at the time of the hearing request filing, for that would undermine a parent’s right to assert stay-put in the last agreed upon program.

Stay-Put Rights for a Student Subject to Expulsion from a Publicly Funded Private Special Education School

The ruling on the three preliminary, but ultimately dispositive, motions in Georgetown Public Schools and Landmark School, BSEA #1408733, 20 MSER 169 (Oliver, 2014), involved the intersection of two issues: the right of an approved private school to expel a student enrolled pursuant to an IEP and the parameters of stay-put. Landmark School (“Landmark”) had expelled the student for violating its drug policies. Subsequent to the removal of the case from expedited status after Landmark agreed to have the student attend for the remainder of the academic year, three preliminary motions were filed: (1) parents’ motion for stay-put; (2) Landmark’s motion for summary judgment; and (3) parents’ motion for summary judgment.

The seventeen-year-old student began attending Landmark during the 2011-2012 school year and, through a cost-share settlement agreement between the parents and Georgetown, was to attend Landmark through the 2014-2015 school year. The settlement agreement contained standard clauses pertinent to the dispute that arose: the agreement applied so long as the student was in good standing at Landmark; that if the student were dismissed from Landmark, Georgetown would convene a team meeting to propose a new placement; and the settlement agreement was incorporated into subsequent IEPs. When the student enrolled at Landmark, he and his family signed “abstinence contracts” permitting drug testing and searches of the student and his belongings and agreeing to be subject to the Landmark student handbook. The student handbook contained Landmark’s substance abuse policy, which detailed the procedures and penalties pertaining to drug use.

The student had several incidents involving marijuana and Landmark, after many attempts to address the drug use, expelled the student. Landmark followed the procedures delineated in its handbook and even conducted a manifestation determination before expelling the student.

The parents maintained that because the student was placed at Landmark by Georgetown, the student had all the same rights he would have if he were attending public school. One of those rights would be stay-put during the pending BSEA action. Further, parents argued that the student’s then current placement, Landmark, was the stay-put placement.

The hearing officer found that the student did not have the right to stay-put at Landmark for three reasons. First, termination of students in private placements is clearly allowed by regulation. 603 CMR 18.05(7) provides a procedure for a termination plan and regarding stay-put, states that a private school must “try every available means” to maintain the current placement until the school district locates an alternative placement. However, as long as the private placement follows the procedures of 603 CMR 18.05(7), it is not required to maintain the placement throughout the appeal.

Second, the parents waived the student’s right to stay-put at Landmark in the settlement agreement clause and by agreeing to be bound by both the abstinence contracts and the Landmark student handbook. Both the IDEA and decisions have established the enforceability of such waivers. See 20 U.S.C. §1415(e) and (f)(B)(1); Ipswich Public Schools, BSEA #11-7213, 17 MSER 135 (2011) (validating a “never darken my door” providing for the early termination of a student’s right to special education services); Longmeadow School District, 14 MSER 249 (2008).

Third, relying on Dracut Public Schools and Melmark, 14 MSER 286 (2008), the hearing officer held that the student had the right to stay-put in the same “type” of special education program, but not the specific placement. As seen in Abington Public Schools, BSEA #1407763 (Figueroa, 2014) (discussed above) and other BSEA decisions, the particular facts of a case greatly impact the determination of what constitutes stay-put. This third basis of the hearing officer’s decision should not be applied to situations that differ from the facts of this case. This “generic” stay-put should only be justified in very limited circumstances, such as here, where the private school complied with both its procedures and the law in seeking to expel a student for serious violations of the agreed-to disciplinary code.

This decision clearly offers a serious caution to parents and students not only in agreeing to waive stay-put but also in being mindful of what policies and procedures they are agreeing to when placing students in private placements. However, while Landmark acted laudably by going beyond the law and its policies and procedures, this decision should also not be read as one according private schools free rein in expelling students.

BSEA Upholds DESE Assignment of District Responsibility

Under Massachusetts law, the school district where a child with a disability resides has financial and programmatic responsibility for providing that student’s special education. Generally, the district where a minor child “resides” is the same as the residence of his parents. A determination of residency is less straightforward in the case of divorced or separated parents who share custody and reside in different towns. The determination can be further complicated when the child is in the custody of the Department of Children and Families (“DCF”) and the parent with whom the child resides makes frequent moves. The case of Worcester Public Schools, BSEA #1404967, 20 MSER 176 (Berman, 2014) involved a student whose mother resided in a number of different districts over a short space of time. To add to the confusion, at the time the issue of district responsibility arose, the student was in the custody of the DCF pursuant to a Child Requiring Assistance petition.

In June 2013, the student was residing with his mother in Marlborough when he was admitted to the Cambridge Hospital Adolescent Assessment Unit, where he remained until September 2013. In July 2013, DCF requested clarification of the responsible educational district from the Department of Elementary and Secondary Education (“DESE”), the agency responsible for addressing concerns about residency and assigning such responsibility. Because the mother was residing in Marlborough, DESE assigned fiscal and programmatic responsibility to Marlborough. One month later, however, the mother moved to Milford. DESE then assigned programmatic and fiscal educational responsibility to Milford. In September, the mother moved again, this time to Worcester. Upon the child’s discharge from the hospital in September, DCF placed the student in an out-of-state residential special education school.

In November 2013, DESE assigned financial and programmatic responsibility to Worcester Public Schools as the district where the mother resided. Several months later, upon learning that the child’s father resided in Medway, Worcester requested that responsibility should be shared between Worcester where the mother lived and Medway where the father lived. The Student had never lived with the father. DESE, however, responded that Worcester was solely responsible. Worcester then filed a hearing request with the BSEA challenging DESE’s determination.

The issue to be decided by the hearing officer involved the interpretation of a regulation promulgated by DESE, 603 CMR 28.10(8)(c)(5), which provides:

If the student’s parents live in two different school districts, such school districts shall be jointly responsible for fulfilling the requirement of 603 CMR 28.00 except if the student actually resided with either parent immediately prior to going into a living situation described in 603 CMR 28.10(3) or (4) then the school district where the student resided with the parent . . . shall be responsible and shall remain responsible in the event the student goes in the care or custody of a state agency. (emphasis added).

Worcester argued that DESE misapplied the “except” clause in the regulation because the Student did not actually live in Worcester with his mother prior to going to the residential placement because he was still in the hospital. DESE countered that the regulation was written to resolve the situation when, prior to living apart from his parents or legal guardian, the student lived with two separate parents in separate school districts.

The hearing officer began her analysis by noting that the BSEA must give due deference to DESE’s interpretation of its regulations and must uphold the interpretation “unless it is inconsistent with the plain language of the regulation or otherwise arbitrary or unreasonable.” After looking at the particular fact pattern, the hearing officer agreed with DESE’s interpretation, noting that it was neither inconsistent with the plain language of the regulation nor otherwise arbitrary or capricious. She noted that in the situation of in-hospital stay, the residency of the minor was still that of the minor’s parents and not where the hospital was located. Moreover, while the minor was in the hospital, DESE had changed the assignment of responsibility each time the mother moved. Therefore, immediately before the residential placement, the student “resided” with his mother. The fact that the minor student had never lived there was not controlling.

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