Overview

Commentary on Massachusetts Special Education Decisions: 1st Quarter, 2011, by Robert K. Crabtree, Eileen M. Hagerty, Daniel T.S. Heffernan, and Michelle A. Moor:

January 03, 2011

Introduction

The Bureau of Special Education Appeals (BSEA) issued five decisions and five rulings during the first quarter of 2011 that address a wide range of issues. Three of the five decisions involve requests for out-of-district placements, one decision offers an insightful analysis of a school district’s obligation to provide transportation to a parentally-placed private school student who received speech therapy through the district, and one decision explores parents’ argument that a school district failed to offer the least restrictive placement. Two of the five rulings provide detailed discussions about joining agencies in BSEA disputes; one ruling serves as an important reminder for parents of the potential perils of proceeding to a hearing without an experienced legal advocate; one ruling assesses whether a “screening” can qualify as an “evaluation” that triggers a parent’s right to seek a publicly-funded independent evaluation; and one ruling explores the jurisdiction of the BSEA.

An Overly-Constricted View Of “Education” And What Should Be In An Appropriate Transition Program Blocks A Critical Service

In Granby Public Schools, BSEA #11-0290, 17 MSER 35 (2011), despite undisputed evidence of a 19-year-old student’s inability to control “hostile, violent, self-destructive and self-injurious behaviors” at home and the need for “extraordinary efforts” on the part of his parents to get him to his program on a daily basis, “typically involving 90 minutes of repeated prompting,” the hearing officer concluded that there was no basis on which to order a residential program or a move to a group home “for educational reasons.”

The student, David, is described as having “moderate mental retardation, cerebral palsy, a seizure disorder and a bipolar disorder.” The hearing officer credited the testimony of David’s day program witnesses who generally indicated that he was making some progress in the various areas addressed by his IEP. She noted that the only evidence of behavioral problems within that program was years out of date except for some occasional noncompliance, which, she noted, was typical of all the students in the program.

As for the home behaviors, the hearing officer credited the undisputed testimony of the parents and a social worker who worked regularly with David that he suffered frequent, very disturbing, and risky behaviors. She also acknowledged David’s need for a tremendous amount of repeated cueing to get him to attend his daily program. Six months prior to the hearing, David was hospitalized for a month due to suicidal ideations and increasingly aggressive behaviors at home. The hearing officer concluded, however, that since he was “making educational progress” within the four corners of his daily program, the school district had satisfied its obligation to provide David with FAPE as well as its obligation to address his need to develop skills necessary for him to transition to life following public school. As she put it, “the credible testimony indicates that David is able to access the curriculum.” She therefore concluded that he did not require residential services “for educational reasons.”

The hearing officer distinguished other BSEA cases in which school districts have been ordered to provide residential placements on the ground that, in those decisions, “there has been credible expert testimony showing how and why these students needed residential placement for educational reasons.” “That testimony,” she said, “was lacking in this matter.”

This is a troubling analysis. The outcome reflects a too-narrow view of both the scope of IDEA and the type of evidence necessary to support needed services for an at-risk student. It also departs from the line of cases since the reauthorization of IDEA in 2004 that speak to the appropriate components of transition programs.

This decision stands in contrast to that of another “David”—David D. of David D. v. Dartmouth School Committee, 615 F. Supp. 639 (D. Mass. 1984). That District Court opinion established long ago the importance of demonstration of mastery and generalization of skills across environments as necessary evidence of genuine learning, for a student whose disability led to serious behavioral and emotional difficulties outside of the structure of his school program. David D. exhibited aggressive and otherwise inappropriate behaviors in the afternoon and evening hours after school. The BSEA hearing officer in that case—like the one in this one—found that the student was “achieving effective educational progress.” That hearing officer had also found that David D.’s behavioral breaches outside of school were “isolated”—a finding not made in the Granby case, as there was no dispute that David of Granby’s behavior was frequent and troubling, even requiring a long hospital stay shortly before the hearing. The judge in David D. noted: “The preponderance of all evidence compels a finding that plaintiff cannot adhere to acceptable standards of behavior when not under supervision or in a carefully controlled setting.”

The Court held in David D. that “the ability to generalize social and behavioral skills learned in the classroom is an appropriate part of a special educational program for mentally retarded persons such as plaintiff. David’s need for training to enable him to generalize behavioral control learned in school is therefore one that should be addressed by his IEP.” 615 F. Supp. at 646-647. In the Granby decision, the hearing officer’s discussion of the impact of David’s “gravely concerning” behavioral difficulties at home was limited to whether that behavior “interfered with David’s ability to access the curriculum.” This is as if to say that social/behavioral development—an explicit component of a special education program under our regulations, see 603 CMR 28.02(17)—is to be addressed if and only to the extent that a student’s social or behavioral deficits undermine access to other, more traditional, elements of a school curriculum.

The primary problems with this decision, it seems to these commentators, are that the hearing officer allowed the school district to restrict all of its evidence of “progress” to what was happening within the four corners of its program, as if evidence of behavior outside of school was immaterial to the district’s responsibility. She failed to consider how David was going to be prepared for transition to life after school. She looked at the home behavior solely to see if it somehow impeded David’s access to what she called the “curriculum”—limiting her notion of “curriculum” to what the program offered during the hours he was there. But David’s behavior at home was clear evidence of a critical gap in his overall progress toward acquiring the skills necessary to conform his behavior to the standards of civilized community living, which should occupy a central place in David’s individualized “curriculum.”

There is no indication in the decision that Granby ever evaluated David’s home-based performance. It clearly should have done so. (See Sutton Public Schools, BSEA # 09-798, 16 MSER 18 (2010), in which the hearing officer did not allow a district to pretend that it was unaware of an adolescent’s toileting issues on the argument that no formal evaluation had identified it as an issue; similarly, here the district had been aware of the home-based problems for quite some time and cannot escape responsibility on a claim of lack of knowledge.) If there was a lack of expert support for the hearing officer to order residential services, how do we reconcile that with the lack of expert support for the argument of the district—which had the burden of proof in this case—that maladaptive behavior outside of its walls was irrelevant to the question of David’s progress and with the district’s failure to produce expert evidence on the issue of whether further services are necessary for David to obtain effective coping, behavioral and social skills across environments? If the case needed an expert, it was the district that should have supplied one. Such an expert would need to give credible testimony examining David’s behavior and describing what it would take for him to become a safe and self-controlled individual, capable of living in group settings and working in potentially frustrating circumstances without decompensation.

Finally, if the case needed an expert, and particularly in light of the short remaining window of opportunity for this student to learn the behavioral, self-management and coping skills he needs, what prevented this hearing officer from holding the matter open and ordering the development of an independent expert’s opinion on the key matters before her? Note that in Pentucket Regional School District, BSEA # 10-6783, 17 MSER 1 (2011) (discussed below), there was no expert support for the private placement sought by the parent. However, that hearing officer did not leave it at that. Noting that the student was deteriorating emotionally at home as well as academically, she ordered the district immediately to fund an independent evaluation by a qualified expert and to consider what changes should be made to the student’s program and placement, in light of the evaluator’s recommendations. See also, e.g., Duxbury Public Schools, BSEA #09-0295, 14 MSER 398 (2008).

Credibility Of Parent’s Expert Undermined By Lack Of Direct Information From Teachers And By Unexplained Low Scores In Standardized Testing

Monson Public Schools, BSEA # 10-6892, 17 MSER 12 (2011), concerns a 15- year-old high school freshman with a “double deficit” learning disability affecting both phonological awareness and rapid naming, as well as difficulty expressing himself orally and in writing. The hearing officer held for the school district, and against the parents’ pursuit of an order to place him at a private special education school for children with learning disabilities.

Monson illustrates the difficulty of successfully making a case for an outside placement even when, as here, the school district as the party initiating the BSEA proceeding must carry the burden of proof. No matter who bears the burden of proof in a matter concerning a student who has been educated within the district, the district always enjoys the evidentiary advantage of having witnesses who have worked daily with the student and who have control over the preparation of progress reports and report cards as well as the fund of anecdotal information from the classroom that any teacher can selectively bring to a hearing record to support the district’s position.

Against this evidentiary armament, as well as the presumption under IDEA in favor of educating students within the “least restrictive” educational environment and the deference given to school district choices of teaching methodology, parents have only the ability to engage independent experts and hope that they will be found credible and persuasive in the expression of their findings and recommendations. The credibility of those experts will ultimately turn not just on credentials (training, certifications, special experience, history as an evaluator including whether the expert has consulted to districts as well as parents), but also on the data upon which the expert bases his opinion. If the expert does not or cannot access a current or proposed program to observe it at length under the typical operating conditions of that program, his testimony will be affected. If he does not obtain information directly from the district’s service providers, his testimony may suffer for a lack of follow-through. If he fails to explain apparent spikes or other anomalies in the results of standardized testing as compared to the testing produced by other evaluators within a relevant time, the impact of his test results will be undermined.

In this case, the hearing officer was impressed by the district’s numerous teacher witnesses, particularly one who had a master’s degree in special education and who had worked directly and extensively with the student. The teachers gave consistent and detailed testimony that the student was making good progress— better, in fact, than many students without IEPs. On the parents’ side, the hearing officer was underwhelmed by the parents’ primary witness. She noted that the expert had drawn a number of conclusions during his observation without asking teachers whether those conclusions were grounded in fact—for example, that the student could not read material on his desk because he did not observe the student looking at those materials. She also noted that reading testing completed by that expert included results that were far below the results of other testers, including an educational consultant who had been engaged by the parents, but that the expert did nothing to explain the anomaly in those results as compared to the results of others’ testing. (The parents’ key expert at the hearing found the student’s reading to be at 3rd and 4th grade levels, where an earlier round of testing by another parent-engaged consultant had recorded reading levels at the 6th grade level when the student was a 7th grader.)

Lessons for parents and their consultants: apparent spikes in testing results, in one direction or another, compared to other testing need to be explained before those results can be relied upon as a critical basis for a parents’ case. Also, as we have commented numerous times, expert observers need to cross all the “t’s” and dot all the “i’s”, including making all necessary efforts to obtain detailed information from the student’s teachers and other service providers before drawing conclusions material to the ultimate recommendations. Hearing officers have repeatedly discounted the opinion of parent experts because they failed to speak with the student’s teachers. See, e.g., Pittsfield Public Schools & Central Berkshire Regional School District, BSEA # 08-4603, 14 MSER 315 (2008); Southwick-Tolland Regional School District, BSEA # 06-6583, 2 MSER 279 (2006); Chicopee Public Schools, BSEA # 05-2920, MSER 87, (2005). In addition, the “right” of an observer to speak with the student’s teacher has been well established. Northbridge Public Schools, BSEA # 09-2533,14 MSER 348 (2008).

This expert should have, according to the hearing officer, inquired of the student’s teachers whether he was correct in concluding that the student could not read the material on his desk when he observed. (We note that the ability to make such an inquiry depends on the school district having cleared the way for teachers to talk directly with the expert, which is often not the case.)

One lesson from this ruling for parents and their advocates: scour the records for apparent contradictions. Be fully prepared with your experts to address the accuracy of apparently anomalous evidence—and do not rely on the expert’s assertion that something simply cannot be as the school’s witnesses say it is.

Appropriateness Of The Current IEP “Inconclusive”—An Independent Evaluation Is Ordered

Finding that the evidence about the appropriateness of the current IEP was “inconclusive,” the hearing officer in Pentucket Regional School District, BSEA # 10-6783, 17 MSER 1 (2011), ordered the school district to fund an evaluation by a qualified independent evaluator. The case provides another lesson in the need to have unequivocal expert support for the relief sought. It also illustrates the hearing officer’s authority to fashion relief that may go beyond what either party sought.

The parent, who appeared pro se, asserted that the student should be removed from his inclusion 8th grade public school program and placed at The Landmark School, a private Chapter 766-approved school for students with language-based learning disabilities and average to above average cognitive abilities. The parent filed the hearing request, initially claiming that the previous two IEPs were inappropriate and seeking placement at Landmark for both the summer 2010 and 2010-2011 academic year. In her amended hearing request, the parent no longer sought summer 2010 placement or specific placement at Landmark for the 2010-2011 academic year. Instead, she sought “compensation in the form of a free and appropriate educational placement¼for the 2010-2011 school year and 2011 extended year services.” The district maintained that the student made excellent progress in Pentucket’s inclusion program and should continue there. Any failure to achieve his potential was attributed to his failure to consistently complete homework assignments, which the district asserted was not its fault.

Evaluations of the student indicated that he had strong intellectual abilities, high average to superior verbal skills and average to high average non-verbal cognitive skills, and solidly average working memory. His weaknesses included low average processing speed and learning disabilities in math and written expression, as well as executive function deficits which affected his ability to organize and produce written work in an efficient manner.

The parties’ dispute over special education services for the student dated back to 2003. Pentucket repeatedly denied eligibility and both parties filed hearing requests between 2005 and 2007. The parties entered into a resolution agreement in January 2008 whereby the district found the student eligible for special education.

The student’s sixth grade program required him, for the first time, to change classrooms and teachers for different subjects. This requirement, according to the mother, left him “shell shocked,” leaving the student immobilized and missing school due to headaches and stomachaches.

The student entered middle school in seventh grade in fall 2009. The student’s MCAS scores and grades faltered. By the end of seventh grade, the student was receiving C’s and D’s. Both parties agreed that these were lower than expected given the student’s intellectual abilities. The student’s emotional state deteriorated, manifest in his loss of self-esteem and a sense of being overwhelmed.

The hearing officer’s analysis of the need for placement at Landmark illustrates how hearing officers determine which opinions to credit. Most of student’s seventh grade teachers testified at hearing. They were specific and detailed about the student’s participation in their classrooms and his progress in certain areas. They did not deny certain deficits, such as organization, but testified credibly to the meaningful progress the student had made. The district attributed the student’s low grades to his inability to complete homework assignments consistently and carefully. Both parties agreed that this was due in significant part to the fact that student lived alternating weeks with his mother and father, and that the father did not push the student to do his homework.

The student’s private neuropsychologist had several factors that buttressed the credibility of his opinion: he was highly qualified; had evaluated the student on three occasions over the course of three years; and testified at hearing. However, he had last evaluated the student in January-February 2009, twenty months prior to the hearing; he had not observed the student in his program; and he testified by phone and not in person. Lastly, and perhaps the fatal blow to the parent’s case for placement at Landmark, he did not, at the time of his last evaluation, recommend placement outside the public school setting. Although there may have been a serious need for placement at Landmark, the case for an outplacement was not advanced well at the hearing.

We commend the hearing officer for not letting it go at that. She noted that, while the parent had not made the case for a Landmark placement, clearly something was lacking in the student’s current IEP. The fact that the school district could not control what went on in the student’s home to get homework done did not absolve the district of its obligation to do better by the student. The evidence was clear that the student’s academic performance and emotional well-being were deteriorating. Since the hearing did not illuminate a clear path to revising the IEP to improve the student’s performance, the hearing officer ordered that the district designate and fund an independent evaluation by “an appropriately-credentialed professional with expertise in analyzing, designing and implementing services for adolescents with profiles similar to Student.” The hearing officer also ordered that this expert focus the evaluation on the “’fit’ between the student and his program, and [address] both the gap between student’s ability and achievement and his apparent growing disengagement from the educational process.” The hearing officer ordered that this evaluation be done swiftly, and that the Team reconvene to review the evaluation and consider changes to the current IEP and, if necessary, to his placement. As noted in our discussion of Granby, supra, we believe that this is the appropriate way for a hearing officer to handle the situation where more evidence is needed to illuminate the needs of a student who is struggling in his or her current program.

Private School Student Entitled To Public Transportation In Order To Access Related Services

Weymouth Public Schools, BSEA # 11-2663, 17 MSER 20 (2011), concerned a four-year-old preschool student with substantial expressive language deficits, poor articulation, difficulties with memory and retrieval, and limited English proficiency. The student was attending a private preschool program paid for by her parents. The student received one hour per week of speech-language services from Weymouth pursuant to an IEP.

The parents filed a hearing request asking the BSEA to order Weymouth to increase the amount of student’s speech-language services, and to provide student with transportation between her private preschool and the public elementary school where she received those services.

The hearing officer first noted that under state law, M.G.L. c. 71B, a student can be found eligible for “related services” (e.g., speech-language, occupational and physical therapies, counseling) from the public school district in which the student resides, even though the student attends private school. Turning next to the issue of the adequacy of the speech-language services in student’s IEP, the hearing officer credited the testimony of student’s preschool teacher, the social worker at student’s preschool, an independent speech-language pathologist, and parents, all of whom testified that student’s speech and expressive language deficits had a substantial and negative impact on her ability to interact with others and to participate in her educational program. The hearing officer also credited the Weymouth speech-language pathologist’s impressions of student’s needs, but noted that the district’s expert agreed during the hearing that increasing student’s services would be “fine.” Given the strength of the parents’ evidence that student required additional services, and the lack of testimony from Weymouth experts strongly disputing parents’ position, the hearing officer found that the student’s speech-language therapy should be increased to two 45-minute sessions per week.

The more intriguing part of the decision, however, is the hearing officer’s analysis of Weymouth’s obligation to provide student with transportation from her private preschool to the public elementary school in order to receive speech-language therapy. Weymouth argued that student was not entitled to receive transportation because student did not have a transportation-related disability and thus did not require transportation as a “related service.” The hearing officer disagreed with Weymouth, and provided much-needed guidance about when school districts have an obligation to provide transportation to parentally-placed private school students who receive special education or related services.

Citing a decision from the Eleventh Circuit, the hearing officer rejected Weymouth’s position and found that “Student is entitled to transportation as a related service if transportation is necessary for her to benefit from her speech-language services.” The basis for the hearing officer’s decision was a federal regulation that states: “If necessary for the child to benefit from or participate in the services provided under this part [governing special education provided by public schools to students enrolled in private schools at private expense], a parentally-placed private school child with a disability must be provided transportation¼[f]rom the service site to the private school, or the child’s home, depending on the timing of the services.” 34 CFR § 300.139 (b)(1)(i)(B). The hearing officer emphasized that the regulation requires the transportation to be “necessary” to allow a student to access and benefit from the special education services.

In this case, while the distance between the private preschool and the elementary school was quite small, the hearing officer found that a four year-old student could not be expected to walk independently between both schools, and therefore, Weymouth was required to provide transportation. If the student had been older and could safely walk this distance independently, arguably the outcome of the hearing officer’s decision would have been different.

For parents and advocates, this well-reasoned decision provides important clarity about the responsibility of school districts to provide transportation to parentally-placed private school students who receive services through an IEP, and reiterates that transportation may be required for such students even if a student does not have a “transportation-related” disability.

Semantics Don’t Allow A School District To Evade Its Responsibility To Fund An Independent Evaluation

Framingham Public Schools, BSEA # 11-1276, 17 MSER 28 (2011), did not involve any factual disputes and was decided as a matter of law on the district’s motion for summary judgment. The student in this case presented with difficulties in handwriting and articulation. In February 2009, parent requested that Framingham conduct an “updated OT screening” because student “really struggles with his handwriting.” The parent contacted Framingham again the following month and asked the district to conduct a formal occupational therapy evaluation.

In response to parent’s request, Framingham conducted what it referred to as an “OT screening” in May 2010, which consisted of an observation of student engaging in various paper/pencil tasks and using scissors. On the basis of this screening, Framingham’s evaluator concluded that the student was not eligible for OT services. Framingham subsequently proposed an IEP that did not include OT services. Parent disagreed with Framingham’s conclusion that the student did not require OT, and asked the district to fund an Independent Education Evaluation (“IEE”) in the area of occupational therapy. Parent’s request comported with her right under state law to seek an IEE at district expense because she disagreed with the results of a Framingham evaluation that had been conducted within the past sixteen months. See M.G.L.c. 71B, § 3; 603 CMR 28.04(5)(c)(6). When a parent requests an IEE under these circumstances, a school district has only two choices—(1) proceed to the BSEA within five school days of receiving parent’s request and show that that its evaluations were sufficiently comprehensive and appropriate; or (2) agree to parent’s request for public funding. See603 CMR 28.04(5)(d). [1]

In this case, Framingham denied parent’s request for an IEE, arguing that the district had not in fact conducted a formal OT “evaluation” in the past 16 months, because “an occupational therapy screening is not an evaluation.” After some back and forth with the district, parent ultimately obtained an independent OT evaluation, and then submitted the report and invoice to Framingham for reimbursement. Framingham refused to reimburse parent for the evaluation, but did not proceed to the BSEA.

The hearing officer was not persuaded by Framingham’s semantics-based argument that its OT “screening” was not an “evaluation” and therefore could not trigger parent’s right to seek an IEE. The hearing officer noted that, “regardless of the terminology used,” Framingham’s evaluator had observed and tested student, had used her professional judgment to evaluate student, and the district had used this screening to conclude that the student did not need OT services. Because Framingham relied on the screening to make substantive decisions about student’s IEP, the hearing officer found that the screening constituted an evaluation for the purposes of parent’s right to request an IEE. Noting that Framingham also failed to proceed to the BSEA within five school days of receiving parent’s request for an IEE, the hearing officer denied the district’s motion for summary judgment.

Parents Required To Exhaust Their “Child Find” And Section 504 Claims At The BSEA Before Pursuing Monetary Damages And Other Relief In Federal Court

CBDE Public Schools, BSEA #10-6854, 17 MSER 43 (2011), involves disturbing allegations of misconduct by a school employee and explores the jurisdiction and authority of the BSEA to consider claims that seek monetary damages, rather than educationally-based relief.

During the 2008-2009 school year an employee of the CBDE school district (the district was assigned a pseudonym by the hearing officer to protect the student’s privacy) allegedly raped student when she was 14 years old. Student began having emotional and behavioral outbursts at school. Neither student’s parents nor CBDE were aware of the cause of student’s distress for several months. Parents alleged in their hearing request that they asked CBDE to provide student with additional services when student began to decline emotionally, and that CBDE did not initiate an evaluation or provide special education services in accordance with its “Child Find” obligations.

When CBDE received actual notice of the alleged rape in March 2009, it notified the police and suspended the accused CBDE employee (who subsequently pled guilty to criminal charges stemming from the incident). Due to publicity around the incident, and the small number of possible victims, persons within the CBDE community were eventually able to identify student as the victim of the CBDE’s alleged misconduct. Unfortunately, some students within the CBDE community taunted and criticized the victim, and blamed her for the employee’s arrest. Student’s emotional stability deteriorated. Nonetheless, CBDE did not initiate an evaluation or offer student support or services.

In January 2010, student had a mental breakdown, was hospitalized, and was diagnosed with post-traumatic stress disorder and a mood disorder. CBDE proposed an initial evaluation to determine student’s eligibility for special education in late March 2010.

Parents argued in their hearing request that, had CBDE conducted a timely evaluation, student would have revealed the alleged sexual misconduct earlier, would have received appropriate services, and would have avoided the emotional breakdown and hospitalization she experienced. Parents also brought various state and federal tort, negligence and constitutionally-based claims. They asked the BSEA to order CBDE to provide student with a residential placement and sought monetary damages.

After the parents their filed their hearing request, CBDE agreed to place student in a residential therapeutic program, effectively resolving the parents’ prospective educationally-based claims. However, claims involving CBDE’s violations of Section 504 and the Child Find provisions of the IDEA, as well as the tort, negligence and constitutional claims, remained. CBDE moved to dismiss all of these claims, arguing that dismissal was proper because all of the student’s educationally-based claims had been resolved.

Although the hearing officer ultimately agreed with CBDE that most of the parents’ educationally-based claims had been resolved, he found that parent’s claims alleging violations of Child Find remained. He explained that:

Once a parent requests (or indicates a need for) special education services, even if the parent’s request or indication is inartfully stated, or once the school district has sufficient information regarding a student’s need for special education services, even if the student is only “suspected” of having a disability that may require services, the school district may then have a responsibility to evaluate the student because the school district has a general responsibility under child find to identify and evaluate all potentially-eligible students who reside within that school district’s jurisdiction. (Emphasis in the original).

The hearing officer also found that parents sufficiently alleged that CBDE violated Section 504 by displaying “deliberate indifference” to student and her needs and, by its inaction, denying the student meaningful access to her educational program. Given the Child Find and Section 504 claims that remained—and the requirement that parents exhaust all educationally-based claims at the BSEA before proceeding to federal court—the hearing officer concluded he should compile a limited factual record for the purpose of assisting the court. The hearing officer further found that, while he could decide whether CBDE violated Section 504 and its Child Find obligations, he did not have the authority to make decisions of law pertaining to the other claims.

It is quite worrisome that CBDE received a direct request from student’s parents to conduct an evaluation and apparently knew student was deteriorating—and yet declined to even evaluate student for well over a year. The very purpose of the Child Find obligation is to ensure that the opposite occurs. School districts are required to take reasonable steps to evaluate any student residing in the district who has, or is suspected of having, a disability. See 20 U.S.C. § 1412 (a)(3); M.G.L. c. 71B § 3; 603 CMR 28.10(1)-(2). School districts would be well-served to avoid repeating CBDE’s mistakes and take a proactive approach to identifying and evaluating students in need.

The hearing officer has not had the opportunity yet to fact find or make limited determinations in this case because CBDE filed a complaint in federal court in May 2011, appealing this decision.

Parents’ Acceptance Of IEP Defeats Successful Claim

Natick Public Schools, BSEA # 11-3131, 17 MSER 55 (2011), presents a variety of issues, including whether Natick offered student a placement in the least restrictive environment (“LRE”) and whether parents’ acceptance of portions of the IEP that they later disputed precluded their argument that the IEP was inappropriate.

Student was described as highly social, hard-working young woman with significant cognitive limitations and auditory deficits. Natick proposed that the student receive all of her academic courses in a substantially separate program for fifth grade, and be “mainstreamed” with typically developing students for electives, health class, gym, and lunch. According to Natick and a private evaluator jointly paid for by Natick and parents, student’s needs were so considerable that she was not able to make effective progress in any general education academic classrooms.

Parents did not agree with Natick or the evaluator that student required all of her academic instruction in a substantially separate classroom. The parents felt that the LRE would involve student receiving science and social studies in a general education classroom with support. Parents ultimately accepted the services proposed by Natick for fifth grade, but rejected the proposed placement in a substantially separate program.

During the course of student’s fifth grade year the Team reconvened at various times. Natick offered student three additional but substantially similar IEPs—all of which continued to propose placement in the substantially separate classroom. Parents continued to accept the services in the proposed IEPs but to reject the proposed placement.

What is interesting about this case is the hearing officer’s conclusion that, even though the parents had rejected student’s placement in the substantially separate program, they had not preserved their right to contest student’s lack of inclusion for academic courses. The hearing officer explained that, with few exceptions, parental acceptance of an IEP serves to bar a parent from later claiming that the IEP was inappropriate. In this case, according to the hearing officer, because Natick’s substantially separate program offered various amounts of inclusion depending on each student’s needs, the placement itself did not indicate a specific level of inclusion. Rather than rejecting the placement, parents would have needed to reject that portion of each IEP that proposed the student would receive science and social studies instruction in the substantially separate classroom. The hearing officer also ruled against the parents because they failed to demonstrate that the IEPs Natick proposed for fifth grade were unreasonable, based on the information available to the Team at the time each program was proposed.

While parents do need to be careful to reject any portions of an IEP they determine to be inappropriate (both in terms of services and placement), in this case Natick was fully aware that parents had rejected the placement was because of the lack of inclusion. If the purpose of a rejection is to put the district on notice of a parent’s disagreement with all or part of an educational plan, was not that accomplished by the parents in this case? They told the Team at least four times that they did not agree with Natick’s decision to keep student in a substantially separate program, and there did not seem to be a dispute that Natick was aware of the reasons for the disagreement. This case serves as a warning, however, that when parents disagree with portions of a proposed program, they should use the “accept in part, reject in part” option when responding to the IEP. Accepting the IEP and rejecting the placement is not the same thing and, as in this case, may not preserve their rights.

Two Denials Of Joinder

The BSEA considered two motions for joinder during this quarter. Both were denied. In Justice Resource Center, BSEA #11-0520, 17 MSER 32 (2011), the hearing officer denied the parent’s motion to join the Office of the Commissioner of Probation (“OCP”) because the hearing officer concluded that the BSEA lacked jurisdiction over that entity. InLittleton Public Schools, BSEA #11-3309, 17 MSER 26 (2011), the hearing officer denied without prejudice the motions of two districts to join the Department of Children and Families (“DCF”), finding the motions premature.

Justice Resource Center concerned a student and parent who, as a result of a Juvenile Court order, signed an Order of Probation Conditions that required the student to attend a day program at the Justice Resource Center (“JRC”) in New Bedford. The student’s probation officer also signed and accepted the order. The JRC is a program for juvenile offenders, operated by the Administrative Office of the Massachusetts Trial Court through its Office of Community Corrections (“OCC”). Although the student and his mother lived in Taunton, the student (for reasons not explained in the ruling) was required to register in the New Bedford Public Schools (“NBPS”). Educational classes formed one component of the JRC program. Classes were taught by NBPS teachers, in buildings leased from the City of New Bedford. Beyond that, the extent of NBPS’ responsibility toward the student was disputed.

The parent filed her hearing request against NBPS, Taunton, and DESE, asserting that the student had failed to receive FAPE during a three-month period when he attended JRC and that he was entitled to compensatory education as a result. She then sought to join OCP. NBPS supported the parent’s joinder motion, while Taunton and DESE took no position on it.

The hearing officer concluded, pursuant to 603 CMR 28.08(3), [2] that the BSEA lacks jurisdiction over OCP. Under 603 CMR 28.08(3), a BSEA hearing officer may determine “that services shall be provided by [DCF, DDS, DMH, DPH], or any other state agency or program, in addition to the IEP services to be provided by the school district” (emphasis added). After citing the rather unhelpful definition in 603 CMR 28.02(19)(“State agency shall mean a Massachusetts state agency”), the hearing officer went on to consider the state statutory scheme of which OCC and OCP are part, set forth in M.G.L. c. 211 through c. 211F. The hearing officer observed that, under that scheme, the OCC, OCP, and JRC all fall within the judicial branch of state government. He noted that BSEA decisions are subject to review by the state Superior Court. He concluded that “the BSEA’s administrative jurisdiction over other state agencies does not extend to the Massachusetts court system,” and that joinder pursuant to BSEA Rule I(J) would therefore be improper. 17 MSER at 34.

In support of his conclusion, the hearing officer cited an IDEA disciplinary provision and corresponding regulation, 20 U.S.C. §1415(k)(6)(A) and 34 C.F.R.§300.535(a). Each of these provides that nothing in IDEA Part B shall be construed to prevent state law enforcement or judicial agencies from exercising their responsibilities when a special education student commits a crime. The hearing officer could also have cited the general responsibility to provide FAPE, pursuant to 20 U.S.C. §1412(a)(1) and M.G.L. c. 71B, §3, and the provisions regarding school district responsibility in 603 CMR 28.10. Presumably, if the parent in JRC can prove that her son was deprived of FAPE, she will have a complete remedy against NBPS, Taunton, or both.

In this quarter’s other joinder case, Littleton, the student’s parents, who resided within the Lincoln-Sudbury Regional School District (“LSRSD”), had voluntarily placed their son into DCF custody. DCF placed the student in a group home in Littleton. The parents filed a hearing request against Littleton, seeking to compel that district to provide a residential placement for the student. Littleton then moved to join LSRSD and DCF. LSRSD did not oppose the motion for joinder, but filed its own motion seeking joinder of DCF. DCF opposed both districts’ motions. Although it does not appear that the parents formally opposed the motions to join DCF, they took the position that complete relief could be ordered through a BSEA hearing against the two school districts, without DCF’s participation.

After reviewing the standards for joinder under M.G.L. c. 71B, §3, 603 CMR 28.08(3), and BSEA Rule I(J), the hearing officer concluded that the districts’ motions to join DCF were premature. He pointed out that several important facts were not yet clear at the time of the motion hearing, including “whether DCF will continue to provide residential services and if so, for how long,” and whether DCF would continue to be involved with the student after his eighteenth birthday, which would occur in July 2011. 17 MSER at 27. Further, the hearing officer identified an unresolved legal issue, which he said would need to be briefed and argued before he could reach the merits of the motions: “whether the BSEA would have the authority to order DCF to provide residential services to Student if he is receiving only voluntary services from DCF.” Id.

The hearing officer noted that joinder of DCF would place a burden on the hearing process, as scheduling would become more complicated and the time needed for examination and cross-examination of additional witnesses would make the hearing longer. He found that the circumstances, in the case’s current posture, did not justify the imposition of this burden. “[F]or joinder to be justified, it is not sufficient that DCF may possibly be involved in the future and could possibly be ordered to provide needed services,” he stated. 17 MSER at 27.

Thus, the hearing officer denied both motions to join DCF without prejudice. He stated that motions for joinder could be renewed “in the event that DCF’s future involvement and responsibility become clearer, . . . [or] the BSEA determines that residential services are not the responsibility of a school district, or because of other relevant change in circumstances relevant to the need for DCF to be ordered to provide services so that Student would be able to access or benefit from his special education services.” 17 MSER at 28.

Taken together, JRC and Littleton demonstrate that it is important for a party considering a joinder motion to perform a careful analysis. The party should determine, first, whether the entity to be joined is one over which the BSEA has jurisdiction (JRC). If so, the party should go on to consider whether the time is ripe to bring the motion, or whether the motion must instead await further development of the case’s factual and legal issues (Littleton).

Hearing Officer Considers Various Motions, Issues Warning To Parent Based On Advocate’s Conduct

The parent in Taunton Public Schools, BSEA #10-8142, 17 MSER 51 (2011), was represented by a lay advocate. The ruling, which considers three motions by the parent and one by the district, stands not only as a warning to the parent in that case but as a caution to parents in general regarding the need to choose their representatives with care.

The procedural history, as recounted by the hearing officer in Taunton, involved nearly six months of pre-hearing proceedings, culminating in a rescheduled hearing date of January 6, 2011. On that date, the parent and advocate appeared but declined to go forward with the hearing. The district moved to dismiss. The hearing officer outlined the three options available to the parent at that point: proceeding to hearing; dismissal with prejudice; or agreement to submit the issues on documents alone pursuant to BSEA Rule XII. The parent and district agreed in writing to the last option.

Four days later, the parent filed motions to rescind her agreement to decision on the documents, for change of venue, and for recusal of the hearing officer. The district opposed all of the parent’s motions, and renewed and supplemented a previous motion to dismiss. The hearing officer granted the motion for rescission. She denied the motions for change of venue, recusal, and dismissal.

The hearing officer found that the motion to rescind the parent’s agreement to decision on the documents should be granted for three reasons. First, she stated, “the BSEA Rule XII procedure is always voluntary.” 17 MSER at 52; thus presumably a party can always withdraw its assent thereto. Second, the hearing officer pointed out that “no significant period of time elapsed” between the parent’s agreement to proceed on the documents and her filing of the motion for rescission. Id. Third, the hearing officer determined that “the procedural consequences to the School and to the Parent of rescinding the agreement are substantially equivalent,” meaning that neither party would be unduly prejudiced.

The hearing officer did note that the parent’s initial agreement to the Rule XII procedure, followed by the motion to rescind, might appear to be an end run around the choices presented to her on the hearing date, constituting “an attempt to achieve the objective she originally sought, i.e., a postponement of the January 6, 2011 hearing, rather than a genuine change of heart.” Id. Finding that “the Parent is without competent legal representation,” however, the hearing officer declined to draw that inference, and granted the motion to rescind the agreement. Id.

In her motion for change of venue, the parent sought to have the hearing held at the offices of the Division of Administrative Law Appeals (“DALA”), presumably meaning DALA’s main office in Boston. The hearing was scheduled to be held at Taunton High School, in order to address the parent’s concerns about access to her son’s records. The parent argued, however, that her physical safety could not be assured either at Taunton High School or at the BSEA offices in Malden. The hearing officer denied the motion and ordered the hearing to proceed at the BSEA in Malden. The hearing officer stated a number of reasons for her ruling. First, she explained that, although the BSEA is now a component of DALA, the BSEA has no authority to require DALA to make any of its facilities available for BSEA hearings. Second, she found that the BSEA’s Malden location has sufficient security to address the parent’s safety concerns. Third, she pointed out that the BSEA hearing rooms are separate from the administrative offices, thus negating the “creeping bias” that the parent had apparently alleged due to proximity of the hearing rooms to the offices. Fourth, the hearing officer noted that the parent had declined to view her son’s records, meaning that the main reason for scheduling the hearing in Taunton had disappeared. Lastly, the hearing officer concluded that the Malden location was reasonably convenient for the parties, witnesses, and hearing officer.

The hearing officer then turned to the parent’s motion for recusal, which had two components. The parent asserted, first that she could not receive a fair hearing from any BSEA hearing officer, and that the case should be transferred to a DALA magistrate; and second, that the assigned hearing officer was not impartial and should therefore recuse herself. The hearing officer rejected both arguments. With regard to the first, she pointed out that transfer to a DALA magistrate was not possible, as the BSEA has exclusive jurisdiction over special education disputes. [3] With regard to the second prong of the parent’s motion, the hearing officer outlined and then applied the factors relevant to a motion to recusal. Her professional qualifications were not challenged. She found that the types of objective factors that ordinarily warrant recusal, such as financial interest, personal or professional connection with a hearing participant, or residence within the school district, were absent. She also found that there were no subjective factors, such as impermissible bias or prejudgment, that would affect her ability to decide the case fairly. Lastly, the hearing officer found that there were no factors that would create an appearance of partiality or bias. She emphasized that such factors, in order to be disqualifying, “must arise from some extrajudicial source,” and not from a litigant’s dissatisfaction with rulings made either in the current proceeding or in a prior one. 17 MSER at 53. Finding that the parent’s motion rested solely on this type of dissatisfaction (both with the procedural course of the case to date and with a different hearing officer in a previous matter), the hearing officer concluded that recusal was not warranted.

The hearing officer went on to consider whether the case should be reassigned to a different hearing officer. She found that “the real potential for procedural and substantive harm to the School’s defense, along with the substantial risk of disruption to the administrative processes at the BSEA, that a late stage reassignment is likely to produce, significantly outweigh the discomfort that the Parent may experience in continuing with the current hearing officer.” 17 MSER at 53-54. The hearing officer therefore declined to refer the case for reassignment.

Lastly, the hearing officer considered the district’s motion to dismiss the case with prejudice. The hearing officer summarized the questionable conduct in which the parent had engaged throughout the proceedings, which included: failing to proceed promptly with prosecution of the case; failure to adhere to deadlines; failure to adhere to BSEA rules; failure to comply with direct procedural and substantive orders of the hearing officer; and “repeatedly submitt[ing] false, misleading, and potentially defamatory documents in contravention of hearing officer warnings and directions.” 17 MSER at 54. The hearing officer stated that these actions had “had a substantial detrimental [e]ffect on the School, the School’s attorney and the BSEA.” Id.

Typically, the hearing officer explained, such actions would justify dismissal. “Here, however,” she stated, “I cannot construe the procedural and other improprieties against the Parent, as the offending actions were those of her lay advocate.” 17 MSER at 54. The hearing officer viewed as relevant the fact that the parent would not have any means of relief against the advocate if the case were dismissed due to the advocate’s conduct. The hearing officer pointed out that, if the offending actions had been those of a lawyer, the parent would have had several possible avenues for redress. In contrast, “[t]here is no such relief available to the Parent who follows the sometimes inaccurate ‘legal advice,’ the inartful prosecution practices, or simply the poor judgment of a lay advocate.” Id. The hearing officer appeared reluctant to leave the parent with no claim remaining at the BSEA and no means of redress against the advocate whose conduct would have caused the dismissal.

The hearing officer went on to observe that, although she had “taken extraordinary procedural steps and given significant directions and latitude to the parents and advocate,” she had not “explicitly notified the Parent of the serious consequences of continued failure to adhere to BSEA rules and to customary standards of courtesy and decorum in quasi-judicial proceedings.” 17 MSER at 54. Absent such a warning, the hearing officer found, the parent’s claims should not be dismissed. She proceeded to issue a warning to the parent in the plainest terms, indicating that from that point forward the BSEA Rules and expectations of courteous conduct would be strictly enforced and that failure to comply would lead to dismissal with prejudice.

We think that the parent was lucky to escape dismissal with prejudice at this juncture. All persons who practice before the BSEA, whether attorneys, lay advocates, or pro separties, are expected to be familiar with the BSEA Rules and to comply with them, as well as to comply with hearing officers’ orders. BSEA Rule XVII(B)(3) allows dismissal for conduct of the type depicted in the hearing officer’s ruling, and does not explicitly require prior warning. Although parties who proceed without legal representation are granted a certain amount of latitude, another hearing officer might not give a parent and advocate the number of warnings and second chances that this hearing officer did. Moreover, even if parents succeed in avoiding dismissal in this type of situation, they may find themselves open to claims by a district for reimbursement of its attorneys’ fees, pursuant to 20 U.S.C. §1415(i)(3)(B)(i)(III). It behooves parents to choose their representatives carefully, and monitor their representatives’ conduct during the course of BSEA proceedings, or the parents may find themselves without a claim to pursue.

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