Commentary on Massachusetts Special Education Decisions: 1st Quarter, 2016, by Robert K. Crabtree:
July 06, 2016
The BSEA issued four decisions and eight rulings in the first quarter of 2016. Three of the decisions in particular reflect limitations in the substantive rights and legal structures that are meant to support and advance the interests of children with disabilities and their families—limitations that leave pain and unmet needs in their wake. Some, perhaps most, of the problems that families face with the challenges of a disability lie in the conditions of personal and communal life that bureaucratic systems can only address and alleviate imperfectly at best, but as practitioners and service providers in the field, it is incumbent upon us to mark those places where suffering occurs and continually work to identify ways to improve the system.
In Newburyport, we see a severely challenged young woman who has effectively been deprived for 15 years of a consistent, intensive and highly structured program because of gaps in processes and actions that should have, at some point in all those years, been able to identify and address what seems to have been a parent’s resistance against an accurate assessment of the student’s condition and needs and refusal to accept the services that might have made a difference. In Nauset, we see a delay in planning and services where a district apparently lost patience with parents they found to be difficult to deal with, opted to move the student to an outside placement—a good decision, and then—not so good—backed away from its ongoing responsibilities to provide for transitional planning and services. In Agawam and Melmark, we see the painful stresses that the family of a behaviorally and cognitively impaired student suffered when the program that was secured to serve that student required the family, as a condition for services, to collaborate more quickly than the family believed to be safe or reasonable in a process aiming toward the ultimate return of the student to his home—a situation where valid principles and concerns lie on both sides, but where the school’s ultimate move to terminate services because of the family’s failure to abide by the protocols for in-home training left only the prospect of a long search for a replacement and the likely loss of whatever gains the student may have made even without the family cooperating with the school’s protocols. The fourth decision (Sutton) concerns fiscal responsibility where parents’ resided in separate districts.
Rulings included: (1) an order (Framingham) confirming that a behaviorally disordered young student’s stay put placement was back in an inclusion program that parents and district had agreed to remove him from temporarily while they sought an alternative placement; (2) an order (Chelmsford) requiring a district, pursuant to a kindergartener’s stay put rights, to continue educating a student whose parents allegedly had moved out of state where the student might ultimately be found to be protected under the McKinney-Vento Homeless Education Assistance Act; (3) an order (Brockton/Weymouth) for a new district of residence to fund an independent evaluation, the right to which arose based on the parents’ disagreement with their prior district’s evaluations; (4) an order (Medfield) requiring a district to remain in a case where it was the district of residence for a student who had been suspended from a regional high school; (5) an order dismissing a parent’s request to have certain administrators removed from responsibility for his child (Plymouth); (6) an order (Boston) by which a hearing officer refused to recuse herself where the parents interpreted pre-hearing statements as reflecting bias; (7) an order (Pentucket) keeping a proceeding alive where the student-petitioner’s status depended on the outcome of a prior proceeding in which the latest decision in federal court would leave her without standing, but for which the appeal period had not yet expired; (8) dismissal of a claim for damages (Boston and Eric), that had been filed to ensure that a later court proceeding would not be dismissed for failure to exhaust administrative remedies as had been required by the appeals court in Frazier v. Fairhaven School Committee, 276 F.3d 52 (1st Cir. 2002).
Newburyport: One sad stopping place in a long journey through the system’s cracks
In Newburyport P.S. and Susana, BSEA # 1606551, 22 MSER 32 (Reichbach), the hearing officer granted the district’s request for an order establishing substitute consent for an extended evaluation at an out of district program and added, on her own, a substitute consent for that extended evaluation to include an assessment of the home. The district had asked for, and received, an expedited hearing on the grounds that the student could not be managed safely within the district, needed an extended evaluation due to the complexities of her needs and a long history of disagreement between the student’s mother and numerous experts over the nature of the student’s needs, and could not be fully and effectively evaluated within her home as the parent had asked. The student’s mother was without an attorney and absented herself from a significant part of the proceedings.
The student in this case was a seventeen year old girl with PDD/autism, an intellectual disability, and a variety of serious medical ailments, some of which were reflected in extensive medical records and some, though insisted upon by her mother, were not confirmed by her available medical history. The student was described as exhibiting self-injurious behaviors, stereotypies, and echolalia and also as extremely limited in her expressive and receptive language skills.
The hearing officer noted the student’s history as including “moves between districts, delayed enrollment, frequent absences, and multiple periods during which she received schooling in the home, either with or without the resident district’s approval.” She also described the mother’s consistent denial of her child’s PDD/autism despite multiple evaluations by various experts that supported the diagnosis, insisting instead on attributing the student’s cognitive and behavioral challenges to allergies, a hearing disorder and other medical conditions.
The student and her parent had moved to Newburyport before the school year began in September 2015, but had not notified either the district they had left behind or Newburyport of the move. After the prior district announced it would begin truancy proceedings, the mother enrolled the student in Newburyport in January 2016. Newburyport indicated the need for an evaluation. The mother asked for the evaluation to be in the home and for in-home services, submitting a physician’s note with her request. The doctor’s note, however, indicated that there was no medical reason the student could not participate in an educational program. Newburyport denied the mother’s request for the evaluation to be in her home, and for a very short time the student did begin an extended evaluation in the district.
Within days, the student exhibited a number of violent behaviors (assaulting staff members, throwing a chair, and banging her head against the floor) that made it clear to the school staff that they could not keep her safe and effectively complete the evaluation. The mother insisted that the behaviors were caused by an allergy. Newburyport called an emergency meeting and proposed an extended evaluation, referring the student to an outside program, Futures, to complete the process. The mother refused and insisted that any evaluation take place in her home.
The history and the descriptions of this student’s current presentation reflect what appears to be a sadly embattled and dysfunctional relationship between a parent with a seriously disabled child and the several school systems and outside professionals who have attempted over the years to understand that child and guide the family toward services. The hearing officer acknowledges the BSEA’s limits—and those of a school district—by effectively pleading with the mother to forego her obvious resistance against an understanding of her child’s needs that is not tied to a physical/medical condition to allow her child to be evaluated in a structured, expert setting. She wrote:
I cannot force [the student’s] mother to bring Susana to Futures for this evaluation to occur. In light of Susanna’s mother’s continuing refusal to consent to an extended evaluation and her expressed intention not to return her daughter to school, the District could have stopped there. I commend Newburyport for pursuing this matter instead. It appears that in spite of her considerable challenges, Susana is capable of making progress if she is provided with appropriate services in a safe environment. It is my sincere hope that Susana’s mother will allow Susana to undergo an extended evaluation, which could lead to information (medical and educational) that would permit Susana’s mother, her doctors, and her educators to work together to support Susana’s growth.
For many parents, having their child diagnosed with autism brings with it a profound sense of grief as they experience the condition—perceived as potentially permanently undermining their child’s ability to engage in mutually reinforcing relations—to be akin to the loss of a beloved family member. Parents must give up certain expectations for their child and find productive ways to accept the child’s condition and to help the child develop the social and behavioral navigation skills they will need in order to live as safe, effective and fulfilling a life as possible. Some parents, overwhelmed by the sense of loss, though, become stuck in the stage of denial that comes with profound grief, and in that stage will sometimes cleave fiercely to any hint of an exit from the pain they feel for themselves and their child—to the detriment of that child’s chances to develop the skills she needs. Taking at face value the narrative that underlies this BSEA decision, it seems a tragic tale of such denial—a parent that, unfortunately, was given a suggestion at an early point in the child’s life that perhaps her condition was not a spectrum disorder at all, but one that was caused by a physical/medical condition—an allergy. If only the source of the allergic response could be detected, perhaps it could be treated and cured, and that, it seems, was a hope that this parent has clung to for now going on 15 years, from the time she first sought answers to her daughter’s autistic-like behaviors. The ferocity of her attachment to the “medical” understanding of her child’s condition is reflected in her having moved from district to district and constantly resisted evaluations that confirmed a spectrum disorder and recommended highly structured and specialize teaching approaches, to the point, as in this case, of insisting on teaching her child herself at home. The student may have lost considerable ground as a result; the hearing officer refers to some records of real progress when the student did, apparently, participate for short periods in highly structured programs.
School and state agency bureaucracies are, unfortunately, poorly suited to intervene and change the course of a family’s choices when they are not dramatically and obviously injurious to a child. While at an early stage in this child’s life perhaps a more educational and therapeutic approach to this parent might have established a more trusting and fruitful mutual approach to the child, most bureaucracies, underfunded and overwhelmed, have little of the necessary time and skill it often takes to break through a parent’s denial into a productive relationship around a severely challenged child. A bureaucracy’s default, when its powers of persuasion fail, is too often adversarial: litigation at the BSEA to validate the district’s view of the child and plans for addressing her needs or notice to the Department of Children’s and Family Services, if they believe that the resistance against proposed services is tantamount to neglect. The BSEA can confirm the validity of a district’s plans, as in this case, but, as the hearing officer sadly noted, it cannot force the parent to take the necessary steps for her daughter’s well-being. DCF, if this student were of an age calling for DCF’s attention, would, more likely than not, screen out any notice of neglect where a parent is not actively abusing the child or neglecting to feed, clothe or provide a roof over her head: its resources are far too stretched, and its system for triage far too overwhelmed by the more dramatic and obvious cases to expect otherwise.
The bottom line?—This case, compassionately and fairly adjudicated by the BSEA, now joins many other exhibits in the endless argument over what resources, and of what quality, we are willing as a political culture to invest in our children, and especially in those of our children who suffer the profound challenges of a condition such as autism or an intellectual disability. More resources might, in addition to the classroom services that can be provided, allow caring service providers more time and opportunity to work with a parent like this and perhaps overcome the parental denial that can stand in the way of an effective program for this child. It may seem a stretch to say so, but we would venture that putting our tax dollars where our lip-service lies—into the schools where we cultivate our children and, in turn, the future of our human culture—might reduce the number of occasions on which a child with severe needs like the one in this case could turn up at the age of 17 without having had the benefit of the highly structured teaching and supports that she should have had from the very beginning.
Nauset: Send ‘em out and back off—An LEA ignores transitional needs
In the matter of Nauset P.S. and Caleb, BSEA # 1505976/1507508, 22 MSER 40 (Byrne), the school district had given the student a residential IEP providing for placement at the Riverview School, a program that is designed for those, like this student, who have complex learning disabilities and social skill and/or cognitive deficits. Having made that placement, however, as the hearing officer found, the school district effectively withdrew: it failed to evaluate the student before developing either the vocational and transitional goals or the transitional plan included in the student’s IEP; it failed to appropriately evaluate the student’s progress toward achievement of the goals; and then it attempted to push the student to graduation based only on MCAS and curriculum performance without regard to functional skills that lay at the heart of his needs.
When the district proposed to graduate the student after two years at Riverview, the parents asked the BSEA to block the issuance of a diploma and to order continuation of placement at Riverview on a stay put basis at the outset and ultimately at least through the completion of the IEP process following appropriate evaluations, Team deliberations and any further procedural steps that may be required.
The hearing officer took the occasion to remind readers of the centrality of affording genuine access to process to families among the aims of IDEA. As she put it:
At the due process hearing level determining whether a school district has met its obligations to provide a free appropriate public education to a resident student with a disability has both a procedural and a substantive component. Indeed the bulk of the IDEA and its implementing regulations address the procedural aspects of finding and evaluating students, developing their IEPs, providing their programs, and ensuring that the students and their parents have a meaningful voice in all decisions. The federal emphasis on process is not accidental nor trivial. The aim of correct process is to produce correct content. In Massachusetts procedural violations that are serious enough to affect the delivery of appropriate special education services rarely reach the hearing level. This matter is an exception.
22 MSER at 43.
She found the district’s procedural violations “singly, and certainly in combination” to be “sufficiently substantial as to have impeded the rights of the Parent and Student to participate in the educational and transitional planning process and to have had an ongoing negative effect on [the student’s] entitlement to an individually tailored IEP designed to permit him to make meaningful progress toward achievement of his unique and transitional goals.” Noting the district’s apparent emphasis during the hearing on “the interpersonal difficulties Nauset clearly sought to avoid by minimizing family contact in this matter,” she very appropriately underscored the professional obligation of a district in such a context, saying “it is precisely those students without reasonably effective advocates to whom the highest degree of diligence, protection and proper planning is owed.”
The facts underlying this decision are not unusual. There are many cases in which families and school districts suffer enormous stress in their relations with each other, and districts respond in a wide range of manners to the difficulties those antagonistic relations present. Making an outside placement and then effectively minimizing contact with a difficult parent or child is not an atypical such response. The decision in Nauset tolls the bell on such a strategy, reminding districts in ringing terms that they must keep their hands in the process to ensure that a student’s needs are known and met, regardless of the personal emotional cost that may entail. The decision also provides an excellent illustration of the attention that must be paid under the category of transitional planning to the development of social, emotional and functional skills, and the continuing right of a student who has not achieved sufficient progress in such skills to further education and related services even when that student may have passed MCAS and the requisite classes to qualify for a diploma.
Agawam and Melmark: When does a request for an “accommodation” in a residential provider’s family involvement protocols become “unreasonable”?
Parents asked the hearing officer in Agawam P.S. and Melmark N.E., BSEA # 1504488, 22 MSER 22 (Berman), to determine that a home visitation and parent training protocol required by their son’s residential program unreasonably ignored the student’s dangerous behaviors and “the safety concerns that had precipitated Student’s need for residential placement.” The student in the case is a 13-year-old boy with Autism Spectrum Disorder and an intellectual disability who frequently engages in dangerous behaviors such as bolting, pica, and self-injurious behaviors. He was placed at Melmark in compliance with an earlier BSEA decision ordering Agawam to secure and fund a residential placement In Re: Agawam Public Schools, BSEA # 1403554, 20 MSER 1 (Crane).
Parents claimed that in the application process, Melmark had assured them that its protocols for having families plan for and receive their children for home visits, with the hoped-for goal of a return to living at home would be flexibly applied, especially in light of this student’s propensity for dangerous behavior. Instead, they said, Melmark had prematurely attempted to force them to participate in a protocol that unreasonably placed the student and his family at risk and had now wrongfully initiated a planned termination process on the ground that the parents had failed to cooperate with Melmark’s program. Parents argued that they were not opposed ultimately to home visits and that they would willingly participate in the training program meant to prepare for those visits, but they claimed that Melmark had insisted on proceeding with their protocols too quickly, before the student had progressed sufficiently to visit home without unreasonable risk.
The hearing officer described Melmark as viewing “the return of residential students to their families and communities whenever possible as a goal for nearly all students.” In keeping with that policy, Melmark “expects the parents and guardians of residential students to work collaboratively in partnership with [Melmark] in order to help their children move in the direction of reunification.” Language was included in this student’s IEP’s “Additional Information” section confirming the aim of reintegration and the parents’ agreement to cooperate in training and visits arranged in furtherance of the policy. Melmark’s program documentation included clear descriptions of its protocols and the expectation that parents would accept and participate in the steps aimed at ultimate reunification of the family.
Melmark testified that of its 44 residential students only the student in this case and one other student had not experienced some home visitation during the period he had been enrolled (April 2014 to January 2016, the time of the hearing) and that the “visits generally [had] been successful, even with children whose behavior is more challenging than Student’s.”
A few months after they had accepted the proposed IEP providing for placement at Melmark, the parents notified Agawam that they were withdrawing their acceptance of the “additional information” language concerning Melmark’s protocols. They indicated that they would not delegate “life and death safety decisions” to Melmark’s clinical team; they would “share decision making but not relinquish it.” Around the same time they informed a Melmark employee that they had removed certain locks and other safety modifications from their home and that it would not be safe for the student to visit.
Agawam and Melmark contended that while he was making progress at Melmark, the student’s inability to make home visits, due to the parents’ failure to comply with Melmark’s protocols, had denied him the opportunity to generalize skills to his home and community and therefore denied him a FAPE. The hearing officer agreed.
The primary request made by the parents in this case was not to be relieved of the ultimate goal espoused by Melmark and Agawam, to work toward reintegration of their son into their home; it was to have a limited trial home visit to assess his safety and readiness for home visits and to develop an individualized plan for the student with the benefit of data from that trial visit. Melmark had refused to agree to such a trial because the parents had not participated in its structured training program—a prerequisite to a process of gradually increasing home visits to follow.
The hearing officer’s deliberation leading to her decision refusing the parents’ request amounted essentially to a section 504 analysis. She examined whether the parents’ request called for a reasonable accommodation that needed to be made because of the student’s disability or, instead, one that would have unreasonably required Melmark to abandon an element of its program that was an essential component of its pedagogy and program of interventions. She found, as Melmark urged, that its protocol was tightly designed, with its pieces integrated and dependent on all parts functioning together as intended, and with its efficacy proven in the results among its students, including some even more compromised than this student. In that light, she found that ordering even a limited trial home visit as the parents requested “might fundamentally alter the nature of the [Melmark] program, and there is no basis to conclude that the BSEA has the authority to order [Melmark] to do so.”
One can imagine a hearing officer arriving at a different result. Under a Section 504 analysis, the BSEA could certainly order a step that constitutes a reasonable accommodation, where that accommodation could enable the student to continue to participate in a program that was, by the parties’ agreement, helping him to progress. In this case, the result of finding the BSEA to be without the authority to order Melmark to accommodate the parents’ request for a trial run before executing its full training and visitation protocol (unless Melmark voluntarily agrees to do so following the decision) will be the student’s termination of services and the need to begin a search for another residential placement with all the potential disruption and loss of progress that likely would follow such a step. Would it have actually so undermined Melmark’s protocol as to constitute an unreasonable accommodation for the program to allow for (or for the hearing officer to order) a short supervised visit home followed by a clinical team meeting with the parents to fully explore whether they could be brought around to Melmark’s standard practice and procedure and/or whether the student could safely begin to participate in home visits under Melmark’s protocol before this family was required to forego the placement they had fought to obtain?
Reading between the lines, it may be that the family’s history with Melmark reflected such an adamant and long-standing refusal to abide by what seems to have been a clearly articulated policy and protocol after the parents had ostensibly accepted that protocol that Melmark, and ultimately this hearing officer, viewed the “trial” the family requested as an empty and disingenuous tactic. She did not say so. She did say, however—and it seems undeniable—that “such a trial might have been ideal,” and that nothing in the decision prohibits the parties from agreeing to such a trial, though the BSEA could not, under her analysis, have ordered it. She said that the BSEA could not order Melmark “to revamp its method of delivering services and instruction in order to conduct the trial sought by Parents.” How, we wonder, would allowing for a relatively short sidestep from the usual Melmark protocol—one that might provide an opportunity for some substantive data that could be useful both to the educators of the student and to the parents in Melmark’s efforts to bring them on board with the program’s protocols and aims, amount to fatally revamping its program?
The analysis of questions rising under Section 504 requires the application of ambiguous standards: what is a “disability”; what is a “reasonable” accommodation; indeed, what is an “accommodation.” Where such ambiguities are in play, there is room for subjective, even political, line-drawing that is based on the weighing of individual needs against the needs of the proprietor of the environment within which those needs may or may not be addressed. Congress in its last iteration of Section 504 took note of the harsh consequences of some lines of decisions that had leaned too heavily against plaintiffs with disabilities and so added language aiming to redress the balance. Those amendments addressed only the threshold issues of eligibility for protection under 504, however—i.e., how seriously affected one must be by reason of a physical or mental challenge to be eligible for 504 protections. The amendments did not deal with the concept of “reasonableness”—i.e., the condition that a requested accommodation must meet in order for a person with a disability to have an entity ordered to make that accommodation.
The consequences for the hard-pressed family in this Agawam matter of a decision that leaves their son without a placement—at least for as long as it will take to identify and secure a new program—seem to us unnecessarily drastic if there is a possibility that a trial of the kind that the parents requested might have led to a more productive relationship with Melmark and a plan toward the ultimate reintegration of the student that is Melmark’s stated goal. While it is difficult to gauge the impact of hearing and watching a witness deliver direct testimony on the ultimate decision in a case, we think the conclusion favoring an approved special education provider’s unbending protocol in this case may have missed the meaning of the word “reasonable” in weighing the requirement for accommodations for this student.
Sutton: Who pays for a residential placement when the custodial parent leaves town and the other parent stays behind?
The ruling in Sutton P.S., Worcester P.S. and DESE, BSEA # 1601445, 22 MSER 4 (Berman), affirms the DESE’s allocation of fiscal responsibility for the student’s residential costs to the district where his mother now resides, despite her having moved from one district (Worcester) to another (Sutton) 12 days after the student was placed in a residential placement and despite his father continuing to live in the district that the mother left behind. Critical to the ruling is the fact that the parents had been separated for some years and the student had not had overnight visits in the father’s home for some years prior to being placed.
The key to a district’s responsibility for a student is where he or she resides. MGL c. 76, sec. 5. Under 603 CMR 28.10(3) “the school district where the parent(s) or legal guardian resides shall have both programmatic and financial responsibility) for a student placed residentially, and under 603 CMR 28.10(2)(a), when parents live in separate districts and the student lives with each, the two districts must share the cost. But if the student does not “reside,” or has not for some time resided, with one of those parents, it is the parent with whom s/he does (or did) reside that must bear the cost. This ruling affirms the decision of DESE to that effect between the mother’s former and current places of residence. The mother had physical custody to the time the student moved to his residential school, and his “residency” followed hers as a result, where he had spent no time at his father’s abode.
Sutton sought to have Worcester assigned responsibility, either by itself or jointly with Sutton, under a regulation (603 CMR 28.10(8)) that provides for DESE to assign district responsibility for a student placed residentially under an IEP where the student’s residency is unclear or disputed under conditions specified in the regulation (e.g., “if the residence or residential history of the student’s parent(s) or legal guardian is in dispute”). Here, though, said the hearing officer, the residency of the student’s mother was not in doubt; the student’s residency was tied to hers when he was placed residentially, since she had exclusive physical custody; and her move to Sutton carried the student’s residency with her. The father’s continuing residency in Worcester after she moved to Sutton made no difference. The regulation cited by Sutton only applies, she indicated, when conditions make it difficult to identify the residence or domicile of the parent(s) and action by DESE is necessary to resolve the ambiguity.
The issue in this case seems to have been efficiently resolved without a hearing, based on documents and arguments alone, and the hearing officer’s explanation of her ruling is compact, clear, and well-reasoned. The regulations in play are not so crisp in themselves, however, and their application requires a determination of what are frequently exceptionally murky issues in a culture where parents’ involvement with each other and/or with their children, and the location of their respective domiciles are often unclear and changeable.
Framingham: “Stay put” is a return to the classroom, NOT a continuation of the temporary home tutoring a child was receiving when parties agreed to find an alternative placement
The six-year-old student who was the subject of a stay put ruling in Framingham P.S. and Quin, BSEA # 1605247, 22 MSER 12 (Reichbach), had, by the time of that ruling, been held out of school for more than two months by agreement of the parties with two hours per day of home tutoring. The student carried diagnoses of Generalized Anxiety Disorder and ADHD. Framingham’s IEP, accepted by the parent, had provided for full inclusion, with a recent addition of two hours per week of Applied Behavioral Analysis and 30 minutes per month of supervision by a Board Certified Behavioral Analyst.
A month before the parent agreed to have Framingham tutor the student at home, she had agreed with Framingham to explore possible out of district programs for the student; she also later signed releases for an exploration of potential programs for an extended assessment. One or more out of district programs accepted the student for enrollment, but the parent was not prepared to agree. The district then filed a request at the BSEA for an order finding the inclusion program under the student’s last IEP to be inappropriate and ordering placement at one of the programs that had accepted him. The district’s request for an expedited hearing on the matter was denied.
Meanwhile, the parent asked for an order holding the student’s inclusion program to be his stay put placement pending the resolution of the BSEA proceeding. Her request included an important qualification: she was not, she said, insisting on returning to the specific classroom in which the student had begun the year, and she suggested that he might better be moved to a placement where the inclusion program under his last accepted IEP could be provided with additional therapeutic supports such as are available in a different elementary school in the district. Framingham argued, to the contrary, that the student’s home tutoring program should be deemed his stay put placement.
The decision offers a cogent refresher on the intent and application of the IDEA’s requirement that the status quo be preserved pending resolution of a dispute between parents and school districts. Most important for the case at hand, the hearing officer cited the First Circuit’s interpretation of the stay put provision as excluding temporary placements, and requiring, instead, the preservation of “the last placement that the parents and the educational authority agreed to be appropriate.” Verhoven v. Brunswick Sch. Comm, 207 F.2d 1 (1st Cir. 1999). The determination is independent of the question whether the last agreed-upon placement is actually adequate or wise. In that light, the hearing officer dismissed the district’s argument to continue home tutoring pending the outcome of the proceeding and ordered a return to an inclusion program in Framingham.
Her determination did not, however, require a return to the exact location of the student’s enrollment at the start of the school year. She interpreted the stay put provision not as requiring the same classroom necessarily, but one that replicates the educational program contemplated by his IEP. Since the parent had pointed out the existence of other elementary schools in the district that offered more supports within their programs, the hearing officer’s caveat impliedly urged the parties to move in that direction in the designation of a placement to fulfill the stay put requirement.
We assume, given the posture of the case once it arrived at the BSEA, that all reasonably possible supports and accommodations had been exhausted within the classroom to which the student was assigned at the start of the year to enable him to access and learn in that environment. The least restrictive environment mandate under IDEA requires no less before a district gives up on a student’s participation in the mainstream to the maximum appropriate extent. See e.g., Oberti v. Board of Educ., 995 F.2d 1204, 1207 (3rd Cir, 1993). One wonders why, though, if more supportive services were available in other Framingham elementary schools than could be brought to bear in the student’s assigned program, a move to an in-district school with more therapeutic resources was not the first option proposed by the district before moving to the exploration of outside placement options. Perhaps it was; not all facts in a chronology are necessarily reflected within a decision like this. But it does seem that the step was probably omitted, perhaps because the district did not wish to put another elementary school’s program on the table where a move could have upset the stability of that program by requiring it to integrate a child who had clearly had great difficulty managing classroom demands. Whether that would have been a legitimate factor for leaving an in-system move off the table was not tested in this case—not yet.
Chelmsford: “Stay put” for a child who may be homeless is subject to McKinney-Vento
In the matter of Chelmsford P.S. and Robert, BSEA # 1605714, 22 MSER 17 (Reichbach), the hearing officer was asked by the school district to dismiss the parents’ request for an order allowing the student to continue to attend a program in the district pursuant to “stay put” where the family had moved—temporarily, they had hoped—to a district in New Hampshire because of mold in their Chelmsford quarters. They discovered the mold problem in November and moved over the year-end holidays to an address in New Hampshire. They indicated to Chelmsford that they expected the student to enroll in the New Hampshire school district in the fall, and asked Chelmsford to allow him to complete the school year in Chelmsford. Chelmsford said the child could remain in its program until late January, to help the family transition to the new school district, but no longer. The parents opened the BSEA proceeding to seek a finding that Chelmsford had improperly discharged the student and an order allowing the child to attend the district’s kindergarten program through the remainder of the school year. The district sought to dismiss the proceeding because, they argued, the family had established a new permanent address in New Hampshire and Chelmsford no longer had any obligation to enroll the child.
The hearing officer read the parents’ allegations as raising a possibility that the student became “homeless” when the family had to vacate their Chelmsford home—i.e., during the course of the school year and therefore subject to the protections the McKinney-Vento Homeless Education Assistance Act. Because she could not determine on the state of the record whether the student’s circumstances did fall within that statute’s purview, she denied Chelmsford’s request to dismiss the proceeding, effectively leaving the student in place in Chelmsford’s program until and unless evidence could be presented to resolve that issue.
The hearing officer provided a cogent summary of the protections of the McKinney-Vento statute:
[T]he federal McKinney-Vento Homeless Education Assistance Act (“Act”) carves out an exception for children who are “homeless” as defined by the Act. [42 U.S.C. § 11431 et. seq.] Pursuant to the Act, a child who becomes homeless during a particular academic year is permitted to remain in his school of origin for the duration of the school year, if it is in his best interests. Moreover if the child begins living in an area served by another school district, he is entitled to transportation to and from the school of origin, with costs apportioned among the two school districts. The Act defines as homeless, children “who lack a fixed, regular, and adequate nighttime residence” and includes “children and youth who are sharing the housing of other persons due to loss of housing, economic hardship, or a similar reason.”
22 MSER 18 (footnotes omitted).
The ruling is a compassionate one that may well have the effect of preserving the child’s enrollment in his current kindergarten program for some time, possibly to the end of the school year. One could imagine a sterner process under which parents might be required to submit expeditiously to an evidentiary hearing and establish more definitively the chronology of their moves and their current status in the New Hampshire district. While the nature of the child’s educational needs is not described in the ruling, a kindergartener with an IEP whose family has had to move from their home precipitously, has obviously already been subject to some troubling disruption, and to require him to make another transition from the classroom where he has already spent nearly half the school year could seriously undermine his engagement and progress at the outset of his school career. We applaud the hearing officer’s insistence on slowing down the process through the invocation of McKinney-Vento, and we hope that the district will allow the matter to remain in status to permit the child to stay with his class and classmates at least until the end of the school year.
Brockton/Weymouth: Who pays for an IEE when parents move away from the district with whose evaluation they disagreed?
Where a student had moved from one district to another, the ruling in Brockton P.S., Weymouth P.S. and Arnold, BSEA # 1600765, 22 MSER 15 (Byrne), places responsibility for funding of an independent evaluation on the student’s new district of residence (Weymouth), even though the evaluation that the parents had disagreed with had been completed by the other district (Brockton) before the student moved. Explaining her decision, the hearing officer stated: “Here the special education procedure, an IEE, requested of Weymouth by Arnold’s Parent is one of the foundational guarantees found within the IDEA. While it may be inconvenient or burdensome, illogical or even costly to a new district to assume responsibility for a challenged evaluation it did not itself conduct, and may not endorse, it is nevertheless required as one critical component of its general obligation to provide a free appropriate public education to its resident students with disabilities. As soon as Arnold became a resident of Weymouth and enrolled in its public school, Weymouth assumed responsibility for all aspects of his special education, including those related to IEEs.”
The hearing officer’s sympathetic acknowledgement of the receiving district’s sense of unfairness in being tagged with the fiscal consequences of the parents’ disagreement with an earlier district’s assessment of a student while nonetheless squarely holding that district to its obligation, rings across many comparable circumstances. As she noted, the issue of payment for an IEE under these circumstances is no different in principle from a new district of residence’s responsibility, in most cases, to fund services or placements that were first assumed by a prior district of residence. The framers of IDEA and its state counterparts had to determine how to allocate responsibilities when eligible students move from district to district, or even state to state. The emphasis has been, as it should be for the sake of the child, on maintaining continuity to the extent possible when a move is made. By the same token, placing substantive and fiscal obligations squarely on the district of residence even when costs arise out of a prior district’s actions or inaction is a sensible choice that should minimize a family’s need to address bureaucratic complexities that have nothing to do with the quality of their children’s education. In any case, today’s perceived unfair result for community A instead of the prior residence, community B, will no doubt be tomorrow’s unfair result for community B when a student moves into town from community C. Among municipalities across a state, it is more than likely that such perceived inequities will eventually balance out.
Medfield: The district of residence is a necessary party when a collaborative excludes a student
The student in Medfield P.S. and Ricardo, BSEA # 1606568, 22 MSER 30 (Reichbach), was a resident of Medfield, enrolled under an IEP in a program operated by the LABBB Collaborative at the Minuteman Regional High School. He was suspended for ten days following an incident with another student at Minuteman. Minuteman had indicated that it would not permit him to return after that suspension. Medfield agreed to provide tutoring.
The parents alleged that LABBB and/or Medfield had failed to convene the full Team for a manifestation determination, failed to conduct a functional behavioral assessment and failed in various other ways to comply with the student’s rights under IDEA.
Medfield sought to be dismissed as a party. The BSEA refused to allow its motion. The grounds for refusal were obvious: Medfield was a necessary party to the proceeding as the district that was responsible for the education of the student. As the hearing officer explained, if there were any result other than reinstating the student at Minuteman under the LABBB’s program, Medfield would be the entity with the obligation to determine his placement and services. She drew on the language of the BSEA’s joinder rule, noting that Medfield met the criteria outlined there for inclusion in the case as a party that “has an interest relating to the subject matter of the case and is so situated that the case cannot be disposed of in its absence.” (BSEA Rule I(J))
Cogently and clearly explained, the ruling leaves one wondering why and how Medfield could have thought it had no part to play in the matter.
Plymouth: Parent’s complaint is outside of BSEA jurisdiction, but how about improving relations and building trust?
The parent in the case of Plymouth P.S. and Pedro, BSEA # 1603251, 22 MSER 1 (Reichbach), sought an order that two administrative personnel be removed from responsibility over a student and “have their certificates removed” because of their exercise of bad judgment, subjecting children at their elementary school to unsafe conditions. The hearing officer treated the district’s Motion to Dismiss as a Motion for Summary Judgment with the consent of the parties and ruled for the district. The parent based his claim on four items: (1) alleged abusive behavior by a school bus driver—a claim that was investigated and found unsupported by the administrators; (2) the school principal walking by the complainant’s house one evening after the parent had filed a complaint with the MA DESE—an action the parent interpreted as bullying; (3) the same principal operating a chain saw near a school bus while students were exiting the bus; and (4) the administrators’ unwillingness to discuss the need for a traffic light near the school. None of the incidents described by the parent were alleged to have affected the student’s attendance at or progress in school. As such, even if the parent’s concerns were confirmed in the evidence, the hearing officer correctly found that his claims did not fall within the jurisdiction of the BSEA, whose authority extends only to issues concerned with a student’s “eligibility, evaluation, placement, IEP, provision of special education in accordance with state and federal law, or procedural protections of state and federal law.” (603 CMR 28.08(3)(a))
The most serious allegation described in the parent’s hearing presentation seems to have been his belief that his child had been bullied by a school bus driver and that the district did little to investigate or remedy the situation. The parent heard of the alleged bullying from another student on the bus. His son is autistic and may not be able to reliably report to his parent if he is suffering harassment or bullying. A parent, worried for his vulnerable son who cannot protect himself, is likely to believe a report by another student of bullying, depending on how that student comes across, and, unless the district’s investigative protocols are clearly trustworthy, may well believe that a school’s “investigation”—especially one that may have involved only a talk with the reporting student and a review of a few randomly selected video-tapes—was inadequate to the task of protecting his son and was calculated simply to run through the motions and avoid inconvenient personnel actions.
A district’s procedures for dealing with allegations of bullying and/or harassment—especially those affecting students with disabilities that make them particularly vulnerable to bullying—need to be thorough, transparent and above reproach. The parent’s suspicions may or may not have been accurate in this case, but it seems that his sense that the district effectively brushed away the complaint with a minimal investigation—a sense that was likely heightened by the DESE’s determination that the district had failed to document the parent’s complaint—may well have led to a deterioration of trust in the process or the district’s administrators. The BSEA could not serve as a forum within which to attempt to repair the rift; one can only hope that the district will find ways to amend its procedures and develop convincing protocols for administrators that will inculcate trust in the parents of vulnerable students. The shredding of trust around the safety of children in their schools can lead all too often in this society to a dangerously dysfunctional environment.
Boston: Pre-hearing conferences can be tricky if a party is prone to see bias, but a compassionate inquiry about a family’s supports does not indicate prejudice
Parents, pro se, asked the hearing officer to recuse herself in the matter of Boston P.S., BSEA # 1603783, 22 MSER 9 (Figueroa), because they felt that she had exhibited prejudice against them and presumed that they had neglected their daughter’s mental health when she inquired at a pre-hearing conference whether the student was involved in personal or family counseling. The hearing officer reviewed the criteria for recusal—essentially any objective or subjective basis on which she might find herself unable to oversee a fair hearing process and render an unbiased and impartial decision—and found no ground on which to withdraw from adjudicating the matter.
The parents also requested an extension of time to respond to an earlier order requiring them to clarify the issues they wished to have decided in the proceeding. At the heart of that order had been information the parents had asserted at their pre-hearing conference to the effect that the student had been bullied and abused while attending Boston’s program and had been hospitalized as a result. Allegations of that nature had apparently not been stated within the parents’ request for hearing, the timing of the alleged incident(s) of abuse and bullying was not clear, and the order for clarification was apparently issued in the effort to assist the parents in pursuing their claims fully and in an orderly way. Because the parents indicated they had not received the earlier order in time to enable them to respond, the hearing officer allowed their request to extend time.
Hearing officers have to walk a difficult line when a parent appears without representation. The hearing officers of the BSEA have typically extended themselves generously to ensure that a pro se parent has as full an opportunity to be heard as possible within the limits of the evidence available to them. Their doing so, sometimes in the face of the vociferous objections of district counsel, has been clearly upheld in this district in the case of Sudbury Public Schools v. Mass.. DESE ¼ and Susan Doe, 762 F. Supp. 2d 254, 265 (D. Mass. 2010). In that case the judge, far from finding a hearing officer to have exhibited bias and partiality by his extensive questioning of parents’ witnesses, by clarifying the parents’ ambiguous hearing request at the outset of their hearing, and by amending the hearing request to add claims, found the hearing officer’s actions to have been “commendable” in the service of ensuring a full and fair hearing to determine a child’s educational needs, rather than merely resolving a dispute.
The hearing officer’s active probing of the parents at the pre-hearing conference in this case to clarify their claims and to hear about what supports were in place for the student may have felt to the parents as if she had crossed a boundary. Her questions and actions, however, with parents who were unrepresented and obviously not sophisticated in the workings of an evidentiary process, were all clearly aimed at assisting the parents to organize and present their claims in as orderly and complete a manner as possible. As Judge Woodblock might have said, “Commendable.”
A bill was filed in the current session of the Massachusetts legislature, the enactment of which could conceivably reduce the need for hearing officers to spend as much time as they typically must to help pro se parents navigate the process. The bill was filed in both the Senate and the House, H.310—S.281, and is described by the Massachusetts Advocates for Children as follows: “This bill requires the Bureau of Special Education Appeals (BSEA) to hire a pro se facilitator to provide unrepresented parents with information, but not legal advice or representation, so that they may access the BSEA’s dispute resolution processes. Parents without attorneys face near impossible hurdles in accessing the BSEA due process hearings that are used to resolve special education disputes. This bill provides an essential first step towards leveling the playing field.”
What the description might add is that the availability of such a pro se facilitator could help reduce the risk of parties reading bias into hearing officer questions or actions that are meant to ensure an orderly and complete record for decision.
Pentucket: Letting the string play out—a young adult’s claim allowed to remain alive as long as a court decision that would extinguish her claim can still be appealed—a small, but empowering ruling
The petitioner involved in the matter of Pentucket R.S.D. and Beryl, BSEA # 1409900, 22 MSER 29 (Byrne) had been issued a diploma in June 2012 when she was still 17. Prior to the district’s issuance of a diploma, the student’s mother had initiated a proceeding contesting its issuance. In July 2012, having become 18 years old, the petitioner had sought to assume decision-making authority on her own behalf. Pentucket refused to accept her election, claiming that because she had just graduated and had not been subject to an IEP, she was no longer eligible for services or available protections under IDEA.
The parent’s proceeding remained unresolved in 2014, and the student filed a separate hearing request in June 2014—seeking, no doubt, to preserve her rights within the two-year statute of limitations running from the date of issuance of the diploma—asking the BSEA to find Pentucket’s refusal to accept her assumption of decision-making authority to be in violation of her rights and to have denied her a Free Appropriate Public Education.
After some efforts by the district to have the student’s request dismissed for vagueness and a number of missed deadlines on the student’s part, the hearing officer had issued a letter to the parties in January 2015 outlining what she thought were reasonably articulable issues within the student’s original request for hearing. The student replied with a slightly different articulation of the issues, asserting that the district’s refusal to comply with the student’s request had not been accompanied by sufficient notice of rights (“prior written notice” per 34 CFR 300.503) and had “interfered with petitioner’s right to a timely due process hearing.”
The hearing officer found the student’s claims to be sufficiently clear to allow the matter to go forward, but then came to the nub of the issue in this current ruling: whether the student was, at the time of the issuance of a diploma, eligible for services under IDEA. Her eligibility for ongoing IDEA services was the subject of the parent’s earlier BSEA proceeding, a matter that had not yet been resolved. Accordingly, in April 2015, the hearing officer had issued an order indicating that the student’s issues around the district’s refusal to accept her decision-making election would turn on whether, at the time the district refused—a month after the issuance of its diploma—the student was eligible for the services and protections afforded by IDEA. That is, if the diploma was properly issued, then the student was no longer covered by IDEA; if it was not, then she could proceed with her claims.
In October 2015 the earlier parent’s proceeding culminated in a BSEA decision finding the student not to have been eligible for an IEP at the time of the issuance of her diploma. Shortly thereafter, Pentucket requested that the current proceeding be dismissed in light of that decision. The student argued, however, that because the appeal period from the decision finding her to have been ineligible for an IEP at the time of the diploma had not expired, her claim was still open.
The hearing officer agreed that because the BSEA decision holding the petitioner to have been ineligible for an IEP at the time of the diploma could still be appealed, the question that had blocked consideration of the student’s claim a year ago was still unresolved. Pragmatically, she ordered the proceeding to be continued “off-calendar” until the diploma issue was resolved either by action of a court on appeal or by the expiration of the appeal period.
If the student’s mother were ultimately to prevail in an appeal of the earlier BSEA decision, and the student were thus to be accorded eligibility for an IEP and the setting aside of her diploma, we expect that the issue in this current ruling would be quickly resolved. How could the district, in that event, refuse to honor her assumption of responsibility as an adult for decision-making in school matters affecting her?
There are points in the history of this case where a less tolerant hearing officer might have pulled up the drawbridge—periods of non-response after deadlines had been ordered; ambiguities in the elucidation of claims. Instead the hearing officer extended herself to give this pro se young woman a chance—albeit a contingent chance—to have her day in court rather than show her the door. Bravo! The essence of the petitioner’s claim was her wish to assume legal responsibility for her own affairs and to be acknowledged and empowered as an adult—certainly one of the fundamental aims of special education law and process, and especially of its focus on transition planning and services. Perhaps by at least honoring the petitioner’s wish to preserve the chance to argue her points in the event that her mother’s action should be successfully appealed, this hearing officer allowed her the dignity of a place at the legal table rather than simply pulling the plug because of one or another procedural misstep.
Boston: The ripples from Frazier continue to muddy the process
The student in Boston P.S. and Eric A., BSEA # 1604503, 22 MSER 19 (Figueroa), allegedly suffered an egregious attack by a teacher’s aide, causing physical and emotional injuries. His parents filed at the BSEA seeking damages for the student and, for loss of consortium, for themselves, as well as an award of attorney’s fees, even though the BSEA does not have jurisdiction over tort actions. They filed their hearing request to ensure that their claims would not later be dismissed in court for failure to exhaust administrative remedies—a requirement that was set forth in Frazier v. Fairhaven School Committee, 276 F.3d 52 (1st Cir. 2002).
While the BSEA clearly does not have jurisdiction over non-educational claims like the ones that lie at the heart of this matter, nor the authority to award damages, plaintiffs in such proceedings must pay heed to the Frazier court’s direction, to exhaust administrative remedies if/when the underlying issues may give rise to relief under IDEA and fact determinations may be more appropriately made in the forum that has administrative jurisdiction over, and the experience and expertise to decide, those IDEA-related issues.
Even non-educational claims may give rise to a requirement to exhaust. In a decision following Frazier, a district court judge wrote:
Frazier holds that a plaintiff must exhaust administrative procedures with respect to any claim that asserts a violation of the rights to a FAPE. In addition, Frazier suggests that a claim asserted under non-IDEA law may still be subject to the exhaustion requirement if the IDEA and procedures either can provide some meaningful relief or a superior record on which the court could make its determination.
Bowden ex rel Bowden, No. CIV.A.00-12308-DPW, 2002 WL 472293, at *3 (D.Mass. Mar. 20, 2002) (emphasis added).
Ambiguity surrounding the exhaustion requirement leaves a diligent advocate with little choice but to file claims with the BSEA even when they do not appear to directly involve special education issues in order to ensure that plaintiffs will not later be denied their day in court for failure to cross a technical “t” or dot a technical “i”. In the instant matter, might a defendant in a later tort proceeding not argue, if the plaintiff had not filed at the BSEA, that the plaintiff failed to exhaust administrative options as required? Could the BSEA have considered the alleged interference in the student’s access to his special education services and/or the traumatic alteration in his emotional/educational profile that was caused by the school employee’s abuse and craft an order aimed at modifying his services in some way? As remote as such an argument might seem, a careful advocate cannot write off that possibility and, to be sure, must file, take the dismissal that will likely follow, and then proceed to court where the claims belong, without concern over any possible failure to exhaust argument that might have been raised.
This will likely continue to be the state of practice around disabled students’ civil rights and tort claims arising in school environments until and unless the hearing officer and counsel in this case get their wish, as expressed in the hearing officer’s footnote 2: “I note that Parents agree with the wisdom of eliminating the requirement that students with disabilities seek administrative relief first. This is especially so where a non-disabled student facing the same circumstances may proceed directly to Court.” This writer agrees.
The decisions and rulings of the first 2016 quarter include a number of examples of the BSEA’s dedication to ensuring that even the least organized, least sophisticated, and in some cases, perhaps, the most obstreperous of families are given a full and fair consideration of their claims. Hearing officers bend over backward to make sure, to the extent possible, that their decisions are based on a full record and are not swayed in any way by difficult interpersonal dynamics. We also see hearing officers opting to preserve the continuation of services for kids who need stability where procedural or factual ambiguities might, in another sort of adjudicatory context, have led to a less compassionate result. In general the BSEA attempts in its rulings and decisions to act with the best interests of children at heart, while also attending to the legitimate rights and interests of the school districts charged with their care and education. As this commentator has said at the conclusion of a previous contribution, “the BSEA continues to serve the system well, adjudicating the painfully complex and extensively detailed disputes that come before it with a wise hand, compassion for the children whose interests the law is meant to serve, and a scrupulous regard for the boundaries of its authority.” Just as true today.
 Oberti, a leading case on the interpretation of IDEA’s LRE requirement, describes the standard in this language: “We construe IDEA’s mainstreaming requirement to prohibit a school from placing a child with disabilities outside of a regular classroom if educating the child in the regular classroom, with supplementary aids and support services, can be achieved satisfactorily. In addition, if placement outside of a regular classroom is necessary for the child to receive educational benefit, the school may still be violating IDEA if it has not made sufficient efforts to include the child in school programs with nondisabled children whenever possible. We also hold that the school bears the burden of proving compliance with the mainstreaming requirement of IDEA, regardless of which party (the child and parents or the school) brought the claim under IDEA before the district court.”
 Parents in this matter were represented by Daniel Heffernan, Esq., of Kotin, Crabtree & Strong, LLP.