Overview

Commentary on Massachusetts Special Education Decisions: 3rd Quarter, 2013, by Sherry L. Rajaniemi-Gregg, Janine A. Solomon and Lawrence Kotin:

May 01, 2014

Introduction

This quarterly Commentary reviews eight decisions and nine rulings by the Bureau of Special Education Appeals (BSEA). Of particular note are two decisions. The first addresses the issue of appropriate post-secondary transition services for a graduating student with significant mental health needs. The other concerns the issue of eligibility for special education services for a student with high-functioning autism.

The remaining decisions reflect the wide range of issues that come before the BSEA.

Two decisions (by the same hearing officer) with similar fact patterns, have opposite outcomes, based primarily on the fact that the private school placement sought by the parents in one case was Chapter-766 approved while the placement sought by the parents in the other case was not. Three decisions illustrate the difficulty parents face when proceeding at the BSEA without representation by counsel (pro se).

In two other decisions, the BSEA ruled on motions by school districts to join human services agencies to share the responsibility for and the costs of programs for students requiring out-of-district placements; two other decisions involved motions to recuse hearing officers, while another involved a motion to dismiss a parent’s appeal of a finding that their child was ineligible for special education. Two other decisions involved the requirement of exhaustion of administrative remedies before filing a court proceeding. Finally, two decisions address the importance of parental involvement in the IEP process and placement determination. The remaining four decisions concern unique fact situations unlikely to be repeated in future cases.

Transition Services Ordered for Student with Serious Emotional and Behavioral Issues

In Re: Dighton-Rehoboth Regional School District, BSEA 12-9815, 19 MSER 264 (2013) (Scannell), involved a 21 year-old student with significant social, emotional, and behavioral challenges. The hearing officer ordered the district to revoke the student’s diploma and provide ongoing transition services addressing social/behavioral skills through the student’s 22nd birthday.

At the heart of the dispute was a disagreement regarding the student’s readiness to graduate, and the appropriateness of the student’s transition plan and services. While the hearing officer found that the student had met his coursework and MCAS requirements, she concluded that the IEP and transition plan were inappropriate. The hearing officer found that Dighton-Rehoboth (D-R) failed to consider essential information when developing the IEP and transition plan.

The student had a long history of psychiatric hospitalizations and therapeutic programming going back to 2004. The hearing officer found that the student had exhibited aggressive, threatening behavior at school, had been both a victim and a perpetrator of sexual abuse, was argumentative with peers, exhibited boundary issues with staff, and engaged in avoidant and inappropriate behavior with his peers. When the student entered high school in 2007, he continued to exhibit these previously identified behavioral problems. The student’s special education teacher and liaison knew about his diagnoses and at risk behaviors but did not tell anyone about them.

The hearing officer found that D-R was obligated to address the student’s social/emotional and sexually inappropriate behaviors in the students’ IEP through providing for direct instruction in understanding appropriate social interaction and socially acceptable behaviors. She also found that student’s experts testified credibly and persuasively that the student’s inappropriate sexual behavior must be addressed in order for the student to live and work in the community.

Student’s post-secondary plan was to work in the auto industry and to live independently. His transition plan indicated his interest in attending auto technical school and, more importantly, noted his need to improve his interpersonal skills to prepare for independent living. According to the hearing officer, student’s educational progress toward becoming an automotive technician must include not only his ability to read and use math calculations, but also to appropriately interact with the public and work cooperatively with fellow workers, staff and management. As such, it was essential for him to develop the ability to adhere to societal norms, to respect boundaries, to behave appropriately, and to work cooperatively.

This decision provides an important example of the often overlooked right of students with social, emotional and behavioral needs to the same access to transitional plans and services as other students.

Student with Above-Average Cognitive Abilities and Good Grades Found Eligible For Special Education Services

In In Re: Belmont Public Schools, BSEA #1305177, 19 MSER 183 (2013) (Figueroa), the hearing officer addressed the issue of eligibility for special education for a student whose needs were exclusively in the area of social/emotional development.

The student, a seventh grader with diagnoses of autism and ADHD, had average-to-above-average cognitive abilities, but struggled with executive function deficits, particularly with organizational issues, attention, and transitions, and had great difficulty initiating and maintaining friendships. While the student had made progress, the hearing officer found that it was not meaningful, effective progress in his greatest area of need: his social, emotional, and behavioral development. Accordingly, the hearing officer ruled that the student required a more structured, consistent IEP and program with specialized instruction to address his multiple areas of need.

The hearing officer noted that the Team had failed to consider the impact that a diagnosis of autism might have on the student as required by MGL c. 71B ‘ 3. The hearing officer found this especially concerning in light of the parents’ evaluators’ observations and recommendations concerning student’s social and communication deficits arising from his diagnosis of autism. Ultimately, the hearing officer found the proposed interventions to be insufficient to address student’s attention issues in the classroom, his executive function/organizational issues and social pragmatic issues even when he received good grades.

All too often, students who receive satisfactory grades yet struggle with social/emotional needs are found ineligible for special education or are placed on Section 504 Plans or denied any accommodations. This decision reaffirms the right of such students to be found eligible for special education.

Based on District’s Substantial Procedural Violations, Hearing Officer Denies District’s Motion to Dismiss Parent’s Appeal of a Finding of Ineligibility

In In Re: Boston Public Schools, BSEA #1310180, 19 MSER 208 (2013) (Figueroa), the hearing officer denied the district’s motion to dismiss a parent’s appeal of a finding of ineligibility for special education services for a fifteen year-old with diagnoses of ADHD, executive function deficits, and a language based learning disability.

In ruling for the parent, the hearing officer cited the district’s lengthy delays in responding to an initial referral for an evaluation and additional delays in completing the evaluation. The hearing officer found that the district failed to complete its initial assessments for almost seven months after receipt of the parent’s consent. In fact, it took a year for the team to convene and determine the student to be ineligible for special education services. In addition, more than two months elapsed after the finding of ineligibility for the district to offer a 504 plan based on the student’s health disability, difficulty with test taking and poor motivation.

The following school year, the parent arranged for a private neuropsychological evaluation and, again, referred the student for special education. Instead of convening a team to consider the parent’s independent evaluation, the district proposed conducting its own evaluations. The hearing officer found that Boston did not have the right to an unscheduled evaluation and needed to convene the team to consider the parent’s /independent evaluations.

This decision provides an important example of the fact that significant procedural violations can result in substantive relief. In addition, it clarifies that when a district has already evaluated a student and found them ineligible and the parents later submit an independent evaluation, it must reconvene the team (preferably within ten school days per 603 CMR 28.04(5)(f)) and may not cause further delay by proposing its own re-evaluation.

Hearing Officer Grants Stay-Put Motion and Orders DCF and School District to Continue to Cost-Share Student’s Residential Placement

In In Re: Brookline Public Schools and Department of Children and Families, BSEA #1400682, 19 MSER 253 (2013) (Figueroa), the hearing officer granted parents’ stay-put motion and ordered that the Department of Children and Families (ADCF) and Brookline continue to cost-share a therapeutic residential placement for a seventeen year-old student with behavioral and social/emotional needs.

The hearing officer held that by entering into a cost sharing arrangement with Brookline, DCF became subject to the provisions of IDEA, including procedural protections, such as stay put. DCF initiated student’s placement at the residential program pursuant to a CHINS petition and notified Brookline of its placement determination. Thereafter, Brookline agreed to fund the day portion of student’s placement. Student was eventually stepped down to a nearby group home and continued to attend her school program. DCF continued to fund the student’s residence.

The hearing officer found that the group home placement was comparable to the initial residential placement because the essential elements of the student’s program were not altered. The hearing officer also found that it would be unreasonable to require Brookline to fund the entire residential placement as part of its stay-put responsibility since it had previously funded only the day portion of the placement. On the other hand, requiring DCF to maintain its residential support of student at the group home would be consistent with the original cost-share agreement.

This is an important ruling affirming the jurisdiction of hearing officers to require human services agencies to comply with the requirements of IDEA and the stay-put requirement, in particular.

Hearing Officer Denies Motion to Join DDS and DCF As Necessary Parties

In In Re: Arlington Public Schools, BSEA 1309210, 19 MSER 283 (2013) (Crane), a matter involving a nine-year old Student with severe autism and psychiatric disabilities, the hearing officer denied the district’s motion to join the Department of Developmental Services (ADDS) and the Department of Children and Families (ADCF) for the purpose of providing residential or home-based services.

The hearing officer found no compelling reason why DDS or DCF should be joined as a necessary party for the BSEA to resolve the dispute between the parent and the school district. The student was not in the care or custody of DCF, which is required by DCF before it can make a residential placement. Additionally, the hearing officer found that the nature and scope of DCF home services was uncertain since DDS was already voluntarily providing intensive in home supports for the purpose of reducing the likelihood of residential placement.

This ruling is an excellent example of a hearing officer weighing the potential benefit of joining human service agencies against the detrimental effect of complicating the hearing process by adding parties who appear to be unnecessary or inappropriate.

Decisions Illustrating the Imbalance Resulting from Parents Proceeding to a Hearing Without Representation (Pro Se)

In In Re: Chicopee Public Schools, BSEA #1307346, 19 MSER 224 (2013) (Byrne), the hearing officer denied the parent’s request for a private day placement, finding instead that the IEP for a 10-year-old student with autism, social/emotional deficits, and ADHD was appropriate.

The hearing officer found that Chicopee’s proposed placement in a specialized, district-wide, substantially separate educational program was appropriate for the student because it would provide a highly-structured classroom environment with a low student-to-teacher ratio. The parent did not participate in the hearing or present any evidence about her proposed placement. The hearing officer found that the school district provided ample evidence to support the proposed IEP and placement, including five evaluations over two years, along with daily observation notes over a three-month period, all reaching the same conclusion: that the student needed a substantially separate, behaviorally-oriented special education program.

The outcome of this case is not surprising given the advantage that the district had in being represented by counsel and knowing how to present its case. The parents, on the other hand, may have had a case to present, but did not show up or present evidence. As pro se litigants, parents are often at a disadvantage as to how to present their case from an evidentiary perspective so the hearing officer can admit the evidence and give it due weight.

In In Re: Clyde and Martha’s Vineyard Public Schools, BSEA #1304032, 19 MSER 204 (2013) (Byrne) the issue was whether the Martha’s Vineyard Public Schools (MVPS) had taken all reasonable and appropriate steps to ensure continuous implementation of an IEP for an18 year-old student with depression, OCD, substance abuse and conduct disorders after the placement that he had been in became unavailable.

The hearing officer ruled against the parent, but did find Adeeply troubling– it took the district ten months to find a comparable alternative therapeutic residential program for the student and that MVPS’ efforts to find such a placement were Aless than ideal. The hearing officer, however, determined that extenuating circumstances relieved the district of any liability. In particular, the parent delayed informing school officials that an alternate placement was necessary and rejected numerous placements offered by the district, In addition, the student and his mother disagreed with each other about which placement to accept.

This case is an example of the kind of issues that can arise when students reach the age of majority and have the right to approve or disapprove their IEPs. In addition, this case illustrates the 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. This distinction between what may be true and what can be proved is a critical one which many pro se parents fail to understand to their detriment

In In Re: Lexington Public Schools and Anatole, BSEA #1300493, 19 MSER 232 (2013) (Byrne), the pro se parents of a six-year-old diagnosed with PDD-NOS were denied their request for creation of a small regular education kindergarten, similar to the model used in the student’s preschool program, with a teaching approach based on DIR/Floortime principles.

The hearing officer ruled that a school district may select the approach, methodology and staff it considers appropriate for the student so long as they are reasonably supportable and result in a demonstrable educational benefit to the student.

The school district’s proposed program included placement in a regular full day inclusion kindergarten with individual assistance of a highly trained AStudent Support Instructor, supervised by the special education teacher and a Board Certified Behavioral Analyst (ABCBA). The IEP emphasized additional social/behavioral instruction and participation in a small homogeneous special education group for skill instruction in weak areas. The proposed IEP included interventions, techniques, and approaches based on DIR/Floortime and Social Thinking as well as other philosophical and educational best practices including ABA. The school district collected behavioral data and conducted observations by service providers working directly with the student.

The student’s Kindergarten teacher, special education teacher, Early Childhood Special Education Supervisor, and School Psychologist all testified from personal knowledge that the student had made significant progress in the school program. While sympathetic to the parents’ position, the hearing officer found the evidence uncontradicted that the student had demonstrated a positive adaptation to the general classroom rules and to social-behavioral expectations.

This decision illustrates the need for parents to engage independent experts to conduct evaluations and program observations. In this case, the parent’s expert had not observed the student in the general education component of his program nor had the expert observed him in any educational setting. The parent also failed to present evidence of the student’s progress at the private day school, for which the parent was seeking funding. Based on the uncontroverted evidence offered by the district, the hearing officer had no choice but to rule that the IEP developed by the district was appropriate, that the student had demonstrated effective progress, and that the program should continue to be offered to the student.

Hearing Officers Decide Two Cases Involving Exhaustion of Administrative Remedies

The need to exhaust administrative remedies was the subject of two different rulings on motions to dismiss. In In Re: Greater New Bedford Regional Vocational Technical, BSEA #1308227, 19 MSER 220 (07/24/2013, Crane), the hearing officer ruled that he was required to review the Parents’ systemic challenges to the policies and procedures of Greater New Bedford based on the assertion that such policies and procedures had harmed their daughter. The student was a sophomore diagnosed with a central auditory processing disorder, emotional issues, borderline cognitive abilities, and post-traumatic stress disorder. The hearing officer ruled that the jurisdiction of the BSEA extends to all claims in which the hearing request alleges the Student was denied FAPE, even if it lacks jurisdiction to grant relief.

In this case, the Parent alleged that the Student’s disabilities required that she be placed in a small classroom setting with some supportive accommodations in place, and that these services and accommodations could be provided by Greater New Bedford. They alleged further that Greater New Bedford engaged in a systematic practice of dumping students, including their daughter, into New Bedford High School rather than providing her with the programs they required.

The district moved to dismiss [19 MSER 220] on the grounds that the BSEA lacked jurisdiction over the Parents’ systemic claims. The hearing officer concluded that even though he could not grant the relief sought by the Parents, the BSEA Anevertheless may evaluate a parent’s claim that systemic practices or procedures contributed to denying a student FAPE. 19 MSER at 223. Therefore, since he was required to consider the Parents’ systemic claims for that purpose, he denied the district’s Motion to Dismiss to that extent.

Similarly, in In Re: Boston Public Schools, BSEA #1307720, 19 MSER 239 (07/31/2013, Oliver), the hearing officer ruled that despite the fact that the BSEA lacked jurisdiction to award the monetary damages sought by the parents, the BSEA had jurisdiction to develop the factual record for the trial court, pursuant to the requirement that the parents exhaust administrative procedures before proceeding to the trial court for an award of damages. In this case, the Parents alleged that their son, who was a fourth grade Student diagnosed with PDD-NOS, was assaulted by his third grade teacher and suffered personal injuries as a result. They filed a hearing request in order to satisfy the exhaustion requirement of IDEA so that they could seek damages in federal court for violations of the federal Civil Rights Act arising from the district’s denial of FAPE, the ADA, Section 504, and the 14th Amendment. Boston filed a motion to dismiss, arguing that exhaustion was not required in this case because the hearing request did not allege an educational dispute necessitating the fact-finding expertise of the BSEA. The hearing officer denied Boston’s motion, ruling that where parents’ claims are based upon a denial of FAPE, the exhaustion of administrative procedures is mandatory.

We agree with the reasoning of these hearing officers. Despite the fact that the BSEA lacks jurisdiction to order the ultimate remedy sought by the parents, it is essential that the parents’ claims are first reviewed, and a factual record developed, by a hearing officer with special education expertise.

Hearing Officer Reaches Opposite Conclusions in Two Cases Involving Parents’ Requests for Private Placements Based on the Approval Status of Those Placements

Two additional cases this quarter decided by the same hearing officer involved a determination of the appropriateness of school district programs for students on the autism spectrum. Both decisions held that the district’s programs could not provide each of the Students at issue with FAPE; however, the outcome differed drastically based largely on the fact that one requested placement was a Chapter-766 approved school and the other was not.

In In Re: Nashoba Regional School District, BSEA #1304007, 19 MSER 257 (08/14/2013, Berman) the Hearing Officer ordered prospective placement for an eleven-year-old student diagnosed with PDD-NOS and obsessive-compulsive disorder at Realizing Children’s Strengths (RCS), an approved, private special education school. The Parents argued successfully with testimony from credible, highly qualified experts, that Nashoba’s partial inclusion program failed to provide their daughter with a sufficiently intensive ABA-based program to allow her to make meaningful progress. Despite evidence from Nashoba that the Student had made some progress in its program, the hearing officer ruled that the Student failed to make meaningful progress in the key areas of behavior and social skills, both of which still significantly interfered with her academic progress and social development. The hearing officer relied heavily on the testimony and reports of the Parents’ experts, finding them to be persuasive and credible.

This decision is notable because the hearing officer based her decision on the student’s lack of meaningful progress in the areas of behavior and social skills. This decision also underscores the importance of the parents’ use of highly qualified experts during the BSEA hearing process.

In Re: Boston Public Schools, BSEA #1300579, 19 MSER 212 (07/24/2013, Berman) also involved a seven-year-old student on the autism spectrum with challenges in communication, attention, and social interaction. The parents argued that their son was not receiving FAPE due to the failure of the district to provide him with a sufficiently intensive ABA-based program to allow him to make meaningful progress. While the hearing officer ruled that Boston’s program, Joseph Lee Academy Pilot School (Lee Academy), did not provide him with FAPE, she declined to order the Parents’ requested private placement at Confidence Connection. Instead, she ordered Boston to increase the number of ABA hours provided to him in his current program.

Boston had placed the Student in Lee Academy, which is a program run in partnership with the May Institute. The Parents requested that the hearing officer either award placement at a private, unapproved, day placement at Confidence Connection, or in the alternative, increase the number of IEP hours included in the Student’s IEP based upon the recommendations of their experts that the Student required a far more intensive, ABA-based program.

Based upon the evidence provided, and in particular the undisputed testimony of the Parents’ experts that this Student responded well to rigorous ABA-based instruction, the hearing officer found that the Parents had met their burden of demonstrating that Boston’s program did not provide the Student with a sufficient amount or intensity of ABA services to address effectively his behavioral and attentional issues that interfered with his academic, social, and self-care progress. However, the hearing officer ruled that the Parents had not demonstrated that the Student required placement in an as-yet unapproved, new, private day school. Therefore, she ordered, instead, that Boston amend the Student’s IEP to increase the number of individual ABA service hours it would provide, as well as better coordinate the school and home programs.

It should be noted that the hearing officer did not cite any federal or state regulations or statutes, or any prior case law, in ruling that the Parents failed to prove that the Student required prospective placement at a new, unapproved school.

Importance of Parental Involvement and Cooperation in IEP Development and Placement Process

In In Re: Quincy Public Schools, BSEA #1307468, 19 MSER 173 (07/11/2013, Crane), the Parents claimed that Quincy had not complied with the hearing officer’s previous order from November 2012 to locate or create an appropriate educational program for the Student, which found both Quincy’s proposed program and the Parents’ unilateral placement at the Clarke School for Hearing and Speech (AClarke) to be inappropriate. The Student was in sixth grade at the Clarke School, and although she was not entirely deaf, she experienced significant enough hearing loss that it interfered substantially with her education and social interactions. The Parents requested that the hearing officer order that Clarke be made appropriate by requiring Quincy to hire a special education teacher for the Student at Clarke, and also requested compensatory services and reimbursement of past and future expenditures. Quincy denied the Parents’ allegations, claiming that the Parents had sabotaged its attempts to locate or create an appropriate program. Each party had filed a Motion for Summary Judgment and Quincy had also filed a Motion to Dismiss, largely on the basis of res judicata (arguing that the issues raised by the Parents in this hearing request had already been decided previously by the hearing officer, so they could not be raised again).

After reviewing the relevant law, the hearing officer left the determination of each party’s compliance with his prior to “locate or create order” to a later-scheduled evidentiary hearing. However, he dismissed the Parents’ prospective reimbursement claims, limiting any potential reimbursement to the costs they had actually incurred as of the date of the upcoming evidentiary hearing. He also allowed Quincy’s Motion to Dismiss with respect to the Parents’ claim that Quincy should be ordered to hire a special education teacher for the Student at the Clarke School – a program that he had previously determined could not be made appropriate.

Therefore, the only issues remaining to be determined at the evidentiary hearing were whether Quincy had complied with his “locate or create” order and, if not, what relief, if any, should be awarded, including whether the Parents should be reimbursed for expenses that they had already incurred. The hearing officer paid special attention to the allegations of parental failure to cooperate with the “locate or create” process, reserving his decision on that issue until an evidentiary hearing. Although parents may be skeptical about whether the district is acting in good faith, IDEA requires cooperation between the district and the parents.

In Re: Newton Public Schools, BSEA #1307903, 19 MSER 240 (08/06/2013, Crane), involved a hearing request filed by Newton to determine whether its proposed IEP was appropriate. Although the Student resided in Newton, he had been attending school in the Southborough Public Schools’ Partnership Program with New England Center for Children A(NECC Partnership Program@) for Kindergarten and first grade pursuant to an agreement between Newton and Southborough. The Parents had agreed with the placement, but they never accepted part or all of any of the IEPs while the Student was at the NECC Partnership Program. Southborough had notified Newton that the Student must return to the Newton Public Schools for his second grade year, as the NECC Partnership Program continued only through first grade.

Prior to this decision, the hearing officer had denied the Parents’ request for a stay-put order for the Student to continue attending the NECC Partnership Program during the pendency of the dispute. (In Re: Newton Public Schools, BSEA #1307903, 19 MSER 277 (05/15/2013, Crane) The facts showed that the Parents had refused to participate in the Team process to develop a new IEP, and more importantly, there was no appropriate NECC Partnership Program to provide a comparable stay-put placement to the Student as a second grader. Consequently, a Team meeting went forward, which the Parents refused to attend despite being invited, resulting in the proposed IEP in dispute.

Although Newton was the moving party, the hearing officer noted that the Parents still had the burden of proof that Newton’s IEP was not appropriate. Newton took the position that its proposed IEP would essentially replicate the NECC Partnership Program provided to the Student during Kindergarten and first grade. While the hearing officer agreed, he decided that the proposed IEP was inappropriate and ordered instead four specific amendments.

The Parents also asserted that they were denied the opportunity to participate in the development of the IEP. The hearing officer declined to decide this issue, however, because it was not raised at the hearing, However, he did order Newton to schedule a Team meeting to amend the IEP to comply with the relief he had granted.

This decision is instructive as to the importance of parental involvement in the IEP process. Despite the fact that there was evidence that the Parents refused to participate in the process that would have resulted in the removal of the Student from the NECC Partnership Program, the hearing officer stressed the importance of their involvement in the Team meeting to implement the amendments he had ordered. In summary, this decision makes clear that parent involvement in the development of the IEP and placement is a central and critical requirement of IDEA.

Conclusion

The decisions reviewed this quarter present a representative sample of the wide range of legally complex and emotionally charged issues considered by the hearing officers of the BSEA. Without exception, the hearing officers succeed in responding to these issues in a highly professional and caring manner. Of chronic concern, however, are the difficulties encountered by pro se parents who struggle, often unsuccessfully, to present their claims within the requirements of the rules of evidence.

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