Overview

Commentary on Massachusetts Special Education Decisions: 1st Quarter, 2013, by Lawrence Kotin and Eileen M. Hagerty:

July 09, 2013

Introduction

This quarterly Commentary reviews fifteen decisions by the Bureau of Special Education Appeals (BSEA). Of particular note are two decisions involving the jurisdiction of the BSEA to interpret and enforce settlement agreements; a decision addressing the issue of when, if ever, a procedural violation by a school district would be so serious as to enable a parent to prevail by summary judgment prior to a hearing about the appropriateness of the programs at issue; a decision involving one consequence of a district’s failure properly to respond to a parent’s request for an independent evaluation; and two decisions addressing the appropriateness of the parents’ choice of placement versus the district’s proposed placement .

The remaining eight decisions reflect the wide range of issues which come before the BSEA. Two address the extent to which parents can influence the district’s choice of evaluators and assessments. Another involves the DESE’s assignment to a school district of responsibility for a student. Three others involve res judicata, collateral estoppel, and the statute of limitations. The remaining two involve parents asserting claims unique to their personal circumstances.

Six of the fifteen decisions were made after an evidentiary hearing (with one of the six decided on the basis of documents only), while the other nine were rulings on motions. Approximately two-thirds of the decisions involved parents who were unrepresented by counsel (pro se), while the school districts were always represented by counsel. Most of the motions were made by districts, requesting dismissal or summary judgment on issues raised by pro se parents.

 BSEA Lacks Jurisdiction to Enforce a Settlement Agreement, Says Hearing Officer

The parents in In Re: Worcester Public Schools, BSEA #1302473, 19 MSER 68 (01/23/13, Putney-Yaceshyn), filed a hearing request alleging that the Worcester Public Schools had failed to comply with the terms of a settlement agreement signed several years earlier. The parents then filed an amended hearing request in which they increased the amount of reimbursement they sought from Worcester as the result of the alleged breach of the agreement. Worcester moved to dismiss, taking the position that the hearing officer lacked jurisdiction to interpret and enforce the terms of the settlement agreement. Worcester also argued that the parents’ claims were barred both by the two-year statute of limitations and by the “release” clauses in the agreement.

In allowing Worcester’s motion, the hearing officer acknowledged that there is disagreement among the hearing officers as to whether the BSEA’s jurisdictional statutes (IDEA, MGL c. 71B, and Section 504) give hearing officers the authority to adjudicate disputes over the interpretation and enforcement of settlement agreements arising out of the hearing process. This hearing officer sided with the hearing officers who have found no jurisdiction. She concluded that the jurisdictional statutes do not grant authority to interpret and enforce agreements, and pointed out that IDEA explicitly provides for disputes about agreements arising out of the mediation and resolution processes to be heard in state or federal court. Underlying the hearing officer’s ruling is the view that IDEA requires hearing officers to decide whether a student is receiving FAPE, whereas settlement agreements, by their nature, involve compromises necessary to resolve the dispute and are not directed toward the issue of FAPE. Also, the hearing officer stated her belief that hearing officers lack the specialized knowledge and experience that courts have to interpret and enforce contracts.

The hearing officers who have found that the BSEA has jurisdiction to interpret and enforce settlement agreements have done so based on the very broad mandate of IDEA, which grants jurisdiction to the BSEA over “any matter relating to the identification, evaluation, education program or educational placement of a child with a disability or the provision of a free appropriate public education to the child arising under this chapter.” These hearing officers also relied on the sections of IDEA that promote and encourage informal resolution of disputes.

We agree with the reasoning of those hearing officers who have found that jurisdiction exists. Many disputes under IDEA are resolved through written settlement agreements. It is important that both parties, and particularly parents of limited means, be able to count on the ability to have such an agreement interpreted and enforced in a forum, such as the BSEA, to which access is easier and less expensive than it is in court. Also, while courts may have superior expertise and experience in interpreting contracts, hearing officers have superior expertise and experience in understanding the rights and obligations that are involved in the settlement agreements at issue.

 Settlement Agreement Upheld

In Re: Pentucket Regional High School, BSEA #12-8636, 19 MSER 84 (03/11/13 Figueroa), offers an example of the importance of the BSEA’s jurisdiction to enforce settlement agreements. In this case, the parties signed a settlement agreement providing that the district would reimburse the parent for the cost of an independent evaluation for one of her children. In exchange, the parent agreed to dismiss all pending matters involving both of her children. The agreement contained a standard clause indicating that both parties had signed the agreement voluntarily with full understanding of its terms.

The pro se parent then tried to reopen the proceedings, arguing that one of her children had recently reached the age of majority and was not a signatory to the agreement or a separate participant in the process. The district moved to dismiss, arguing that the parent had represented the child in question throughout the proceedings and that the settlement agreement was binding on both the parent and student.

The hearing officer allowed the district’s motion. In so doing, she found that “the agreement or contract between the parties is unambiguous and as such, its terms must be read as drafted without providing additional interpretation.” 19 MSER at 97. The hearing officer went on to quote the following language from In re: Longmeadow Public Schools, BSEA #07-2866, 14 MSER 249, 251 (Crane, 2008):

[I]t would undermine the integrity and efficacy of the settlement process if either party were allowed to avoid their obligations under the agreement, proceed to an evidentiary hearing before the BSEA, and have the BSEA issue a decision on the merits.

Pentucket provides an example as to why the sweeping denial of jurisdiction in Worcester, supra, should be rejected. BSEA hearing officers must have jurisdiction, at a minimum, to enforce the unambiguous language of a settlement agreement so that the “integrity and efficacy of the settlement process” is not undermined.

 Hearing Officer Refuses to Grant Summary Decision

In In Re: Bridgewater-Raynham Regional School District, BSEA #1303762, 19 MSER 17 (01/18/13, Figueroa), the parent filed a motion for summary decision arguing that the district’s process for developing the student’s IEP was so deficient and contrary to law that the IEP resulting from that process was null and void. The parent also asserted that there was no dispute about any of the facts alleged in the parent’s motion and that judgment should issue in the parent’s favor as a matter of law.

Bridgewater-Raynham opposed the parent’s motion, asserting that a dispute of fact existed as to whether the IEP it proposed was appropriate to meet the student’s needs. Bridgewater- Raynham argued further that because the parent’s motion was based upon a procedural violation, the parent would be entitled only to equitable relief, i.e., an award of compensatory education, following a hearing on all aspects of the case. Bridgewater- Raynham did not dispute any of the specific facts alleged by the parent as constituting the procedural violation, however.

Without addressing the specific facts that the parent had alleged as constituting the procedural violation, the hearing officer denied the motion for summary decision. She agreed with the district that there were material issues of fact in dispute; however, she failed to specify what those issues were.

We disagree with the hearing officer’s conclusion. It is well-established that a district’s failure to comply with the procedural requirements of IDEA may constitute a denial of FAPE where the violation causes substantive harm to the child or his parents. See, e.g., In re Springfield, 11 MSER at 13 n.18 (citing cases). In our view, if the procedural violation is serious enough and the facts surrounding the violation are not disputed, parents should not have to go through the time and expense of a full hearing on the merits of the proposed (procedurally defective) IEP. In those circumstances, parents are entitled to a ruling on the legal effect of the violation, including, where appropriate, entry of summary decision.

In this case, it appears that the hearing officer allowed the district to conflate the dispute on the merits (violation of FAPE by district’s proposal of an inappropriate IEP) with the dispute arising from the district’s serious procedural errors (violation of FAPE by failing to provide the procedural protections required by IDEA). As to the first, there were factual issues in dispute. As to the second, however—which was the claim on which the parents sought summary judgment—there were none. Thus, we think that the hearing officer should have gone on to consider whether the magnitude of the violations required a ruling in the parents’ favor as a matter of law, rather than deferring that discussion until the full hearing on the merits of the proposed program.

The hearing officer’s acceptance of the district’s argument would appear to mean that school districts may deprive parents and students of their most basic procedural protections under IDEA and—no matter how serious the violation, and even if the district does not dispute the facts surrounding the violation—parents will be required to incur the financial and emotional costs of a full evidentiary hearing on the merits of the proposed IEP before they can vindicate those rights. Acceptance of this argument also appears to ignore the possibility of partial summary decision pursuant to 801 CMR 1.01(7)(h) and the purpose of that rule, which is to enable claims to be decided without a full hearing where there are no material issues of fact in dispute. In this case, we believe that the hearing officer should have decided the threshold issue – whether, as a matter of law, the district’s procedural violations (the facts as to which were undisputed) were so egregious as to nullify the IEP – rather than requiring the parent to undertake a full hearing on all aspects of that IEP.

 Parent Entitled to Reimbursement of the Full Cost of an Independent Evaluation (Above the Rate Set by the State) Where the District Failed to Respond Appropriately to the Parent’s Request

In In Re: Newton Public Schools, BSEA #1300077, 19 MSER 12 (02/06/13, Berman), the pro se parent filed a hearing request in which she disputed Newton’s finding of ineligibility, alleged numerous procedural violations, challenged the validity of Newton’s evaluations, asserted that Newton had failed to respond on a timely basis to her request for an independent evaluation, and requested full payment by Newton of the cost of an independent evaluator whose rate exceeded the rate established by the state Division of Health Care Finance and Policy. The hearing was postponed by agreement of the parties to allow Newton time to consider an independent evaluation. The parent then filed a status report in which she limited her request for relief to an order for public funding of the independent evaluation that she had obtained.

Newton had evaluated the student at the parent’s request. Based on those results, the district found the student ineligible for special education. The parent disagreed with the finding and requested an independent neuropsychological evaluation. In response, Newton offered to have the evaluation conducted by its own “independent evaluator.” The parent interviewed the proposed evaluator, learned that he was affiliated with Newton, and rejected him as not being “independent.” The parent then hired an independent neuropsychologist. This individual was the only available qualified evaluator whom the parent could find (after a diligent search) who also could complete the evaluation within the necessary time frame.

In ruling for the parent, the hearing officer found that Newton had failed to follow the requisite procedures in response to the parent’s request for an independent evaluation. In particular, the hearing officer found that Newton never informed the parent about where or how she could obtain an independent evaluation, never informed the parent of the allowable payment rate, never informed the parent of the sliding fee scale option, and failed to request a hearing within five school days to defend its own evaluation, as required by 603 CMR 28.04(5)(d).

As a result, the hearing officer ordered Newton to pay in full for the neuropsychological evaluation conducted by the independent evaluator pursuant to the “unique circumstances” exception to the state-approved rates (603 CMR 28.04(5)(a)). The hearing office pointed out that the BSEA has interpreted the “unique circumstances” exception to encompass a variety of situations, including the unavailability of providers who would accept the approved rate and the failure of a school system, as in the present case, to comply with procedural requirements when the parent first requested the independent evaluation.

The lesson to be learned here is an obvious one: a district’s failure to follow established procedures can be extremely costly in time, money, and the diminished relationship between the parent and the district. The hearing officer did an excellent job of analyzing the situation and ordering the appropriate remedy.

 Two Decisions Regarding Disputes over Placement Illustrate the Importance of Counsel in Presenting the Case

In Re: Chicopee Public Schools, BSEA #1300380, 19 MSER 1 (01/03/13, Crane), involved a thirteen-year-old eighth-grade student with solidly average cognitive abilities who had been diagnosed with a language learning disability and executive functioning deficits. She was first placed on an IEP in second grade and had been in inclusion programs since then. The issue before the hearing officer was whether the student was appropriately placed in an inclusion program within the Chicopee Public Schools or whether she required a substantially separate language-based program such as that offered by the White Oak School.

Chicopee was represented by counsel and presented an array of witnesses, including three regular education teachers, three special education teachers, the Coordinator of Special Education, and a private consulting psychologist. The parent was unrepresented and relied on a single expert who was not present at the hearing. The evidence on the parent’s side of the case consisted of the written report of that expert, plus testimony by the student and her mother. The parties’ positions concerning the student’s progress were highly divergent. For example, GORT-IV test results from an August of 2011 administration (immediately prior to the beginning of seventh grade) by the parent’s expert showed the student to be at the mid-fourth grade level in all areas. Administration of the same test by the school psychologist at the end of seventh grade showed the student to be at the seventh-grade level. The district’s consulting neuropsychologist testified that that the difference between the two reflected the student’s progress in seventh grade rather than a discrepancy. The student’s teachers all testified that the student was making effective progress, while the student testified that she does not understand what is said in class but does not like to ask for help because it makes her look “stupid.”

Over the preceding two years, the parent’s expert had had evaluated the student twice, observed the student once (in sixth grade), written an observation report, and, most recently, conducted a record review and consultation report that was directly relevant to the proposed eighth-grade IEP at issue in the hearing. In her reports, the expert found that the student had made minimal progress or regressed and that the proposed inclusion program was not appropriate because the student required a more intensive program of instruction. She stated that the student’s needs “would be best met” in a language-based program.

In weighing the evidence, the hearing officer first noted that the expert’s most recent report was the only one that was directly relevant, as it was the only one that concerned the eighth-grade program at issue. The hearing officer went on to state that he gave her report less weight than he would have done if she had testified. As he pointed out, her testimony would have been subject to cross-examination and clarification, and might have cured some of the deficiencies he found in the report. He stated, for example, that the report failed to specify the bases for the expert’s conclusions about the student’s lack of progress, the deficiencies in the district’s program, or her criticism of the district’s proposed goals and objectives. The hearing officer also noted that the expert had not observed either the proposed eighth-grade program or the similar seventh-grade program. He went on to take issue with her use of “best” in her recommendations; as the hearing officer pointed out, state and federal special education laws do not require a district to provide the “best” for a student. Lastly, the hearing officer observed that “[a]n additional, important impediment to my giving significant probative weight to the opinions found within [the expert’s] reports is that there is nothing in the record (such as testimony or a curriculum vitae) that would allow me to understand [her] relevant professional background.” 19 MSER at 7. As a result, the hearing officer stated that he was “unable to determine whether she has sufficient qualifications to provide expert opinion regarding student’s special education needs and how they should be met.” Id.

The hearing officer concluded that “[t]here is virtually nothing in [the expert’s] report or in the record that would support the necessity of Student’s placement in a substantially-separate educational program.” 19 MSER at 7. In addition, the hearing officer found that the district’s proposed IEP was appropriate, with one modification concerning homework completion. The hearing officer also denied the parent’s request for reimbursement of money spent in connection with the hearing.

The outcome of this case is not surprising, given the huge advantage that the district had in being represented by counsel and knowing how to present its case. The parent, on the other hand, may have had a case to present but, like many pro se litigants, did not know how to present it so that the hearing officer could give the evidence due weight. This distinction, between what a parent presents as his or her perception of the truth and what a hearing officer will accept and credit as evidence, is a critical one, which needs to be understood in order for both sides to enjoy an equal footing in presenting their cases.

In Re: Medford Public Schools, BSEA #13-0006, (12/06/12, Figueroa), by contrast, provides an example of a hearing where both sides appear to have been evenly matched. This case addressed the appropriateness of a substantially separate program proposed by the district for a twelve-year-old with a complex combination of diagnoses. The parents sought reimbursement and prospective funding for their unilateral placement of the student at the Learning Prep School.

Both sides appear to have made very complete presentations and the evidence seems to have been evenly balanced. Ultimately, the hearing officer was convinced that Medford’s program would be able to offer services substantially similar to those provided by Learning Prep and that a transition back to Medford could happen smoothly. Since the parents had the burden of proof and Medford’s program was less restrictive as a matter of law, the hearing officer ruled in the district’s favor.

 Hearing Officer Affirms DESE Assignment of Responsibility for a Student Residing with Divorced Parents in Different Communities

In Re: Masconomet Regional School District, BSEA #1302754, 19 MSER 9 (01/22/13, Oliver) involved the Masconomet Regional School District’s appeal of the DESE’s assignment for a prior year of joint financial and programmatic responsibility with the Danvers Public Schools for a student who lived with his divorced parents in Boxford and Danvers. The student was attending the Landmark School. Prior to going to Landmark, the student had attended the Danvers Public Schools.

The parents, who shared legal custody of their son, had removed him from Danvers and placed him unilaterally at Landmark on November 28, 2011. The parents subsequently filed a hearing request seeking retroactive reimbursement as well as prospective placement at Landmark. The hearing officer in that case ordered both forms of relief. On this appeal from the DESE assignment, MRSD did not contest its joint responsibility for the prospective placement, but contended that it should not share responsibility for the retroactive reimbursement.

The relevant regulation is 603 CMR 28.10(2), which provides that, when a student lives with both parents in two different Massachusetts school districts and the student requires an in-district placement, the district where the student is enrolled is solely responsible; if the student requires an out-of-district placement, however, both districts are jointly responsible. The hearing officer concluded that, because the BSEA decision on the merits had found Danvers’ proposed program inappropriate and had ordered Landmark, “the BSEA Decision nullified [Danvers’] inappropriate in-district IEPs and supplanted them with an Order for Landmark.” 19 MSER at 11. Under 603 CMR 28.10(2), the effect was the same “whether [the Landmark placement] was determined by [an] IEP or supplemented by a BSEA Decision.” Id. Thus, MRSD was jointly liable for the cost of the placement, just as it would have been if the student had been attending Landmark under an IEP from the date of the unilateral placement, and the hearing officer upheld DESE’s allocation of responsibility.

Sometimes, in situations such as this one, parents and their advocates are not sure which district(s) to notify of the unilateral placement, and which to name as parties in a hearing request. (Analogous issues can arise as to program schools, pursuant to 603 CMR 28.10(6).) Under the analysis in this case, parents can certainly notify and file a hearing request against both of the potentially liable districts. In a 603 CMR 28.10(2) situation, parents can also pursue a case against one district, obtain an order against that district, and let the districts sort out their responsibility after that, as happened in this case.

 Joinder of DMH Ordered While Joinder of DCF is Denied

In In Re: Lexington Public Schools, BSEA #1305048, 19 MSER 18 (02/07/13, Figueroa), Lexington filed a motion to join DMH and DCF in a matter involving the parents’ request for residential placement for their daughter. Based on the student’s history of mental health issues and the parents’ then-pending application for DMH services, the hearing officer ordered joinder of DMH based on the standard that Lexington only needs to show “’in a preliminary way that it will be able to present evidence at a Hearing that may result in the entity being responsible to offer some servicesto the student.’” 19 MSER at 20 (quoting In Re: Boston Public Schools, BSEA #06-5402, 12 MSER 209, 210 (Figueroa, 2006)). Because the district had made no such showing with respect to DCF, the hearing officer denied the motion to join DCF.

 District’s Recommendation of a Forty-Five Day Placement Is Affirmed Over the Parent’s Objection

In Re: Grafton Public Schools, BSEA #1304180, 19 MSER 21 (02/14/13, Figueroa), offers a detailed account of how the district arrived at a forty-five day placement for a twelve-year-old student with a diagnosis of ADHD, oppositional defiant disorder, and “significant difficulty with working memory, self-monitoring, organizing, planning and initiating tasks.” 19 MSER at 22. The student had a complex history of school difficulties and efforts to address his needs. His father opposed the district’s proposed forty-five day placement at the Grow School (part of the Southern Worcester County Educational Collaborative) because of alleged abuse of other students at that program in the past. The pro se parent took the position that his son should attend a regular education program within the district. He did not present any evidence other than his own testimony.

The hearing officer ruled for the district, finding that the parent had failed to carry his burden of proof. She observed that the allegations of abuse were uncorroborated, “unpersuasive and likely untrue.” 19 MSER at 29. She concluded that the proposed 45-day IEP and the Grow placement were reasonably calculated to meet the student’s needs.

This case presents a unique and complex situation. Of note are the patience exhibited by the district staff and the care that the hearing officer took in considering all of the father’s concerns and detailing the history of the case. Ultimately, however (as we have pointed out many times before), a parent who is not represented by counsel and does not present the testimony of any expert evaluator is virtually certain to meet the result that the parent did in this case.

 Dismissal of Claims Based on Res Judicata, Collateral Estoppel, Statute of Limitations, and BSEA Jurisdictional Statutes

In Re: Taunton Public School District, BSEA #1304738, 19 MSER 30 (02/28/13, Figueroa), represents another chapter in a long-running dispute involving the BSEA, PQA, and the Superior Court. In this proceeding, the pro se parents attempted to raise issues and complaints which the district asserted either fell outside the purview of BSEA jurisdiction or had previously been adjudicated. The district filed a Motion to Dismiss and Challenge to the Sufficiency of the Hearing Request; the parents did not respond, nor did they contest the district’s allegations.

The hearing officer granted the district’s motion and dismissed the parents’ claims with prejudice. The hearing officer found that all of the parents’ claims had previously been adjudicated by the BSEA and/or the Superior Court. Those claims were thus barred by the principles of res judicata and collateral estoppel. The hearing officer further concluded that, to the extent that certain of the parents’ claims could be construed as alleging continuing violations, the BSEA lacked jurisdiction to consider those claims. Dismissal of the claims (for violation of FERPA, for compliance with the Massachusetts Public Records Law, and for alleged actions by the superintendent and his staff involving law enforcement and DCF ) was therefore proper on that basis as well.

In Re: Brockton Public Schools, BSEA #1301082, 19 MSER 57 (11/15/12, Figueroa), also considered the issue of collateral estoppel. The parties had been involved in two previous BSEA proceedings. The district moved to dismiss the claims of the pro se parent that had been previously litigated, as well as claims that Brockton considered premature. The hearing officer granted Brockton’s motion in part. She dismissed on grounds of collateral estoppel those claims that had previously been adjudicated, but allowed others to survive because they had not been the subject of earlier hearings. She dismissed certain other claims without prejudice, finding them unripe since they depended on Brockton’s completion of evaluations that had not yet occurred.

In In Re: Maple School District, BSEA #12-7653, 19 MSER 64 (01/23/13, Figueroa), the parent alleged fraudulent practices with regard to the MCAS, including illegal withholding of information, “wholesale fraud by the district on an ongoing basis,” and “systemic problems regarding improper assistance to special education students.” 19 MSER at 65. The hearing officer granted the district’s motion to dismiss the system-wide claims, stating that “BSEA hearings are jurisdictionally limited to address the rights of individual students and as such, systemic problems if any, are generally irrelevant to the provision of [FAPE] to an eligible student.” Id. She denied the motion to dismiss on statute of limitations grounds, concluding that the parents could proceed with claims beyond the two-year statute of limitations if they could show that the district withheld information or otherwise prevented the parent from requesting a hearing in a timely manner. The hearing officer ordered dismissal of the parent’s claims under MGL c. 69, §1, on the grounds that the statute conferred no private right of action against the district and that DESE (against which such claims might properly be brought) was not a party to the proceeding. She also dismissed claims under Article 114 of the Massachusetts Constitution, finding no private right of action in that instance either. With regard to the exhaustion of administrative remedies, the hearing officer dismissed certain of the parent’s claims that she found did not arise under IDEA or Section 504, including the parent’s claims alleging fraud and conspiracy in violation of 18 U.S.C. §§1341 and 1343. She refused to dismiss the parent’s Section 1983 claims, however, finding those to be IDEA-related and therefore subject to the administrative exhaustion requirement.

The hearing officer provided no explanation as to why she used a pseudonym for the district. This is a practice that is used only infrequently by hearing officers, either when the parties request it (see In re: ABC Public Schools, infra) or when the facts of the case are particularly sensitive and a district pseudonym it is necessary to protect the student’s identity (e.g., In re: CBDE Public Schools, BSEA #10-6854, 17 MSER 43 (2011, Crane)).

 Hearing Officer Curtails Parents’ Efforts to Control the Evaluation Process

In In Re: ABC Public Schools, BSEA #1303742, 19 MSER 71 (02/07/13, Crane), the district filed a hearing request seeking permission to evaluate a thirteen-year-old student with PDD whom it had placed in a private special education school several years earlier. The district believed that the student would soon require a new placement due to irreconcilable differences between the private school and the student’s parents, and that the evaluation would be necessary in order to develop the student’s next IEP and determine his next placement. The district proposed a psychological assessment and a functional behavioral assessment (FBA); the parents had given consent, but had attempted to impose conditions with which the district did not agree.

The private school moved to intervene, and also filed its own hearing request. The pro se parents, in response to the hearing requests, filed counterclaims against both the district and the private school. As part of their counterclaims, the parents requested that the district conduct educational and physical therapy assessments, to which the parents had already consented.

As the hearing officer stated, the issues before him were “whether ABC Public Schools may conduct certain evaluations and whether it must conduct others.” 19 MSER at 71 (emphasis added). On the first question, the hearing officer found that the student was overdue for a three-year re-evaluation and that there was “little doubt that . . . ABC Public Schools must be allowed to conduct its own evaluations unless Parents choose to forfeit their right to receive all special education services for Student.” Id. at 76. He stated that, in fulfilling its duty to re-evaluate, the district “has the authority to choose what evaluations it needs as part of its three-year reevaluation in order to develop an appropriate IEP even if the evaluations do not comport with Parents’ view (or Parents’ experts’ view or XYZ Private School’s view) of what evaluations should occur or what information is needed in order to write appropriate IEPs,” as long as those evaluations are reasonably necessary to determine the student’s program and placement. Id.

Applying those principles to this case, the hearing officer authorized the district to conduct its proposed psychological assessment and FBA. The parties agreed that the child’s needs were complex. The district’s school psychologists and out-of-district coordinator all testified that the results of the psychological assessment and the FBA would likely assist the district in determining the student’s placement (including peer group). One of the parent’s experts concurred with regard to the FBA. The hearing officer therefore held that the district’s proposed assessments should take place.

The hearing officer rejected the parents’ attempts to impose conditions on those assessments. He stated that, for each evaluation, the district “may choose any professional who is qualified to conduct this evaluation (for example [for the psychological assessment], a licensed psychologist or licensed school psychologist) who may determine in his or her professional discretion the design of the evaluation (including, for example, the test instruments to be used) and how the evaluation is to be conducted (including, for example, the location of the evaluation and the persons who may be present during the evaluation).” 19 MSER at 77.

The hearing officer then considered whether the district was required to conduct educational and physical therapy assessments, as the parents had requested. He found that, on a re-evaluation (in contrast to an initial evaluation), the district was not required to proceed with an evaluation simply because the parents had requested it. He explained that the district’s obligation to re-evaluate “is not triggered by Parents’ consent,” but rather “is dependent upon the amount of time that has passed” since the previous evaluation. 19 MSER at 78-79. The hearing officer denied the request for a physical therapy assessment because the parents had presented no evidence as to the student’s need for such an evaluation. He granted the request for an educational assessment because a district witness, in uncontradicted testimony, agreed that an educational assessment would be helpful in determining the educational services and placement that the student required.

It can be difficult at times for parents to understand why their district won’t accept recent, comprehensive independent evaluations in lieu of doing its own testing and insists instead on performing its own assessments. This decision makes clear that, although parents retain all of their rights to obtain independent evaluations at any time at their own expense (and under certain circumstances at public expense), a district has the right to insist on performing its own evaluations every three years, or sooner if necessary (603 CMR 28.04(3)). Parents may attempt to impose conditions on the evaluation process, but districts need not accede. In these situations, it is always a good idea to try to work the details out informally with the district first, so that resort to hearing, as occurred in this case, will not be necessary.

 Written Notice Found Sufficient Despite Parent Insistence That Only Oral Notice Will Suffice

In Re: Triton Regional School District, BSEA #1302663, 19 MSER 80 (03/06/13, Putney-Yaceshyn), involved a parent who insisted that the written notice provided to her of the denial of the request for a laptop computer and an FM for her was inadequate because she required oral notice due to her disability and inability to understand a written notice. The hearing officer found that the parent had failed to prove her claim and that written notice was adequate.

 Hearing Officer Denies Motion to Dismiss Where Grade Placement is at Issue

In In Re: Sudbury Public Schools and Lincoln-Sudbury Regional School District, BSEA #1305313, 19 MSER 83 (03/07/13, Byrne), the hearing officer denied Lincoln-Sudbury’s motion to dismiss, which was based on the fact that the student was repeating eighth grade in a private special education school and therefore, was not Lincoln-Sudbury’s responsibility until she completed eighth grade and was ready to enter high school. Sudbury, however, had promoted the student to ninth grade and took the position that she was Lincoln-Sudbury’s responsibility. Since the issue of grade placement was in dispute, the hearing officer denied Lincoln-Sudbury’s motion to dismiss.

 CONCLUSION

This review reflects the patience, caring, and common sense approach of the hearing officers to a wide range of fact situations, presented primarily by pro se parents who lack the knowledge and experience to be able to present their concerns in a forum which is bound by the rules of evidence. In addition, certain decisions offer thought- provoking analyses and guidance on issues that are of continuing concern to the litigants in BSEA proceedings. In general, the decisions are remarkable for their thoroughness, careful consideration of every issue, respect for the litigants and other participants in the process, and sincere effort to reach a fair and reasonable conclusion.

Please Note:

Emailing Kotin, Crabtree & Strong, LLP or any of the firm’s attorneys does not create an attorney-client relationship between you and our firm.

Communications received or sent via this website may not be subject to attorney-client privilege and may not be confidential. Do not email confidential information to us.

If you have any questions, please contact us at 617-227-7031.