MSER CASE COMMENTARY 3rd QUARTER 2024

Daniel T.S. Heffernan, Esq.
Alicia M.P. Warren, Esq.
Kotin, Crabtree & Strong, LLP

Daniel T.S. Heffernan and Alicia M.P. Warren are lawyers at the Newton law firm of Kotin, Crabtree and Strong, LLP, a general practice firm. They and their colleagues, Robert K. Crabtree, Eileen M. Hagerty, Marie F. Mercier, and Eliza L.M. Presson concentrate their practices in special education law, among other areas.

INTRODUCTION

After a few slower-than-usual quarters, the BSEA had a very active summer. In the third quarter, the hearing officers issued six decisions and twenty-one rulings. Only one of the decisions, Norwood and Helena, discussed in further detail herein, was favorable for the parents. The rulings, as always, considered a range of topics. In addition to the usual spattering of discovery-, procedure-, and joinder-related disputes, four of the rulings concerned the educational rights of incarcerated students. The rulings discussed within this commentary, Arlington and Newburyport, concern the scope of relief available to parents for a student’s placement in an unapproved private program.

PARENTS LOSE CASE ON QUEST FOR OUT-OF-DISTRICT PLACEMENT

West Bridgewater Public Schools, BSEA No. 2403805, 30 MSER 210 (Berman, July 26, 2024) concerned the appropriateness of various iterations of a student’s in-district programming. At the time of the hearing, the student was a rising seventh-grader, slated to matriculate at his local middle school. He had diagnoses of Autism Spectrum Disorder (“ASD”), which largely impacted his social skills, and a language-based learning disability, which largely impacted his reading comprehension skills. The parents challenged the student’s receipt of a free appropriate public education (“FAPE”), seeking, as relevant to this commentary, an order directing West Bridgewater to place the student in an out-of-district, language-based program.

During the student’s fifth-grade year, the parents expressed concerns about the student’s social functioning and his ongoing struggles with reading comprehension, in contradiction to West Bridgewater’s reports that the student was both highly social and making academic progress. In response, West Bridgewater sought to expedite the student’s triennial evaluation, to which the parents consented. West Bridgewater’s evaluation revealed the student’s average-range reading skills, with the exception of his poor reading comprehension. At a Team meeting to review the evaluation results, the Team agreed that reading comprehension now constituted the student’s primary area of need and proposed the addition of Lindamood Bell’s Visualizing and Verbalizing program (“V/V”), an evidence-based approach designed to target the student’s reading comprehension. Around this same time, the student underwent a private neuropsychological evaluation, which results were consistent with the district’s testing, namely, results demonstrating the student’s generally average-range skills, save for his significant deficits in reading comprehension. The student’s neuropsychologist, however, deemed the student’s full inclusion program inappropriate and recommended the student’s placement in a substantially separate language-based program with similar peers. When the Team convened to review the private evaluation at the beginning of the student’s sixth-grade year, it again proposed to increase the student’s services, the implementation of which the parents accepted.

According to the student’s sixth-grade teachers, several who testified at the hearing, the student was an engaged, hilarious boy who was making progress, particularly with the V/V program. The parents, on the other hand, were concerned that the student did not have solid friendships and was being ridiculed and bullied. That school year, the parents retained an educational consultant to observe the student’s program. After observing the student’s math and science classes, as well as a snack period, the student’s educational consultant concluded that the student appeared to be accessing the content of his classes, albeit with much support. Concerned by the lack of integrated social skills services and his anxious presentation, the student’s educational consultant concluded that he instead needed a substantially separate language-based program. Subsequently, West Bridgewater retained its own educational consultant to observe the student’s program. The district’s educational consultant found the student to be engaged and attentive across classes, ultimately recommending that the district maintain the inclusion placement, so the student could continue to model the behavior of typical peers, but add a range of social skills and executive functioning services to his program. For the student’s upcoming seventh-grade year at his new middle school, the Team proposed to provide the student’s ELA, reading, and academic/executive functioning support within a substantially separate, language-based program, a departure from his previous inclusion-based services. As of the date of the hearing, the parents had not responded to that proposal.

Based on a relatively short analysis, the hearing officer concluded that the parents did not meet their burden of proving that the district failed to offer the student a FAPE for the disputed school years. The hearing officer discredited the recommendations of both the parents’ neuropsychologist, who neither observed the student’s program nor testified at hearing, and the parents’ educational consultant, who apparently did not dispute that they student was accessing the curriculum or making progress. Further, the hearing officer reasoned that the seventh-grade program would actually provide the student with a language-based program for part of his day. While the hearing officer was sympathetic to the parents’ concerns, particularly around the student’s social isolation and vulnerability to bullying, she also found that West Bridgewater was sufficiently responsive to those concerns.

This case illustrates several of the obstacles that parents confront in litigating FAPE disputes. First, parents are hard-pressed to succeed unless their experts are familiar with both the student and the program, can amply support their recommendations, remain involved through continued assessment and/or observation, and ultimately provide testimony at hearing – all of which present both logistical and financial considerations for families. As parent-side practitioners, we know firsthand that not all neuropsychologists are able or willing to observe school-based programs; as long as an observation of the relevant program is conducted by a properly qualified expert, however, we find it unjust for parents’ experts to be discredited merely for not having themselves observed the program. Well-founded expert opinions often and properly rely on collateral sources. Second, special education cases can take years to build, especially when a student remains within a district-based program, which can be seemingly ever-changing. In addition, transition years, such as the switch from elementary to middle school, introduces further complexity, as a program’s structure may naturally change. Where, as in this case, the change is substantially different, parents must decide whether to try the program, resulting in more delay, or challenge it. Here, the parents chose to challenge it, for reasons that are quite understandable. Coupled with already weak expert support for their position, however, that decision appears to have cost them.

A NOTE ABOUT SEEKING PROSPECTIVE PLACEMENT IN UNAPPROVED SPECIAL EDUCATION PROGRAMS

In Arlington Public Schools, BSEA No. 2503543, 30 MSER 310 (Nir, Sep. 30, 2024), parents sought, among other relief, an order for their daughter’s prospective placement at the Carroll School (“Carroll”), an unapproved program. Reasoning that the Individuals with Disabilities Education Act (“IDEA”) limits the BSEA’s authority to order placements only within approved programs, specifically, programs which meet the standards of the applicable State educational agency (here, the Massachusetts Department of Elementary and Secondary Education (“DESE”)), the hearing officer dismissed the parents’ claim for a prospective placement at Carroll with prejudice. We not only question the basis of the hearing officer’s ruling, but also the needlessly harsh result.

First, while it is true that the IDEA defines a FAPE, in part, as an education that meets State standards, we do not believe that it necessarily follows that a Massachusetts hearing officer can never order relief with respect to an unapproved program. Indeed, Massachusetts law, M.G.L. c. 71B, § 10, and regulation, 603 CMR 28.06(3)(d), prescribe a preference for a student’s placement within an approved program, but they do not universally compel it. Second, we are concerned by the hearing officer’s decision to dismiss the parents’ prospective claim with prejudice, particularly where the parents were pro se. BSEA Hearing Rule XVI(B) enables a hearing officer to dismiss a claim either “with prejudice” or “without prejudice.” Where, as here, a claim is dismissed with prejudice, that claim “cannot be reopened/relitigated in subsequent cases before the BSEA.” BSEA Hearing Rule XVI(A).

Even though the hearing officer acknowledged that her authority would enable her to fashion prospective relief in the form of a “create or locate” order, in accordance with 603 CMR 28.06(3)(d), or a “sole source” order, in accordance with 603 CMR 28.06(3)(e), she did not afford the parents the opportunity to amend their request for relief or subsequently pursue such relief in a separate action. As a general matter, a hearing officer may exercise their discretion to craft appropriate relief, separate and apart from a strict, word-by-word adherence to the relief that parents (let alone pro se parents) delineate in their hearing request. Here, the parents pled at least some facts which could have been construed in their favor and to have invoked a “sole source” remedy, which expressly authorizes the district’s use of (and therefore, the hearing officer’s order relative to) unapproved programs in certain circumstances. The hearing officer, however, did not let the issue survive long enough for any relevant facts to be borne out at hearing. We also note that hearing officers can, and regularly do, order relief in the form of consultations, services, and other measures, which, by their nature, do not appear to receive any form of State approval, which is seemingly at odds with the rationale of this ruling.

Given the potential impact of this problematic ruling, it is important for parents and their attorneys to carefully consider their requests for relief, especially where they seek prospective placement in unapproved programs. Out of an abundance of caution, it will be wise for parents to instead seek prospective placement in a program that fulfills the general criteria of the otherwise unapproved school at which they seek prospective placement.

In another ruling this quarter, Newburyport Public Schools, BSEA No. 2414336, 30 MSER 158 (Nir, July 5, 2024), the hearing officer grappled with the same issue, specifically, the parents’ request for prospective placement at Camp Triumph, an unapproved summer program. This claim was also dismissed with prejudice, upon the district’s motion for summary judgment. We share the same concerns about this ruling.

CHILD FIND PUTS IN ABEYANCE THE DISTRICT’S DISCIPLNE OF A STUDENT AND OBLIGATES THE DISTRICT TO EVALUATE HER ELIGIBILITY FOR SECTION 504 OR IDEA SERVICES

Norwood Public Schools and Helena, BSEA # 2501731, 30 MSER 256 (Reichbach, August 29, 2024) involved a hybrid expedited hearing, with some witnesses participating via zoom while others were in-person. The decision demonstrates how extensive the “child find” obligations of a school district are and how it constrains a district’s ability to discipline to a student not yet on an IEP or 504.

Helena was a fifteen-year-old who had not been involved in any disciplinary incidents while in Boston Public Schools’ middle schools. However, her grades suffered during the Covid-19 pandemic manifesting in difficulty understanding material and attending in class when a teacher was not physically present. Her family moved to Norwood in June 2023 and Helena entered Norwood High School as a ninth-grader the subsequent fall.

On May 29, 2024, Helena was involved in a fight with a peer at school, during which a staff member had her leg broken in two places while trying to break up the fight. The superintendent reduced Helena’s permanent expulsion for assault to a suspension lasting from May 31, 2024 through the end of Term 1 of the 2024-2025 school year in November 2024.

The parent contended that Helena received no instruction or tutoring from May 29, 2024 through the end of the 2023-2024 school year, despite her request for alternative educational services, and as a result Helena failed math. Helena repeated the same math course online in summer 2024 but experienced significant difficulty completing assignments without a teacher. The parent claimed that Helena’s ADHD disability had a direct and substantial relationship to the fight that led to her long-term suspension, and Norwood failed to prevent this incident by failing to refer Helena for a special education evaluation. Helena was removed on an emergency basis and during the expulsion hearing, the parent did not mention her ADHD diagnosis nor did she request testing or accommodations of any kind. Norwood claimed that this information was only shared, formally, during the appeals hearing with the superintendent. However, the hearing officer found that there was enough provided prior to the fight to trigger Norwood’s obligation to refer Helena for a special education evaluation.

The IDEA and Section 504 of the Rehabilitation Act of 1973 delineate what is commonly referred to as a district’s “child find” duty. Child find reflects “Congress’s acknowledgment of the paramount importance of properly identifying each child eligible for services.” Pursuant to child find, each state “must have in effect policies and procedures to ensure that: “All children with disabilities residing in the State,…regardless of the severity of their disabilities, and who are in need of special education and related services, are identified, located, and evaluated and a practical method is developed and implemented to determine which children with disabilities are currently receiving needed special education and related services.” Under both Section 504 and the IDEA, school districts have ongoing child find obligations “to identify and evaluate all students who are reasonably suspected of having a disability.” A district’s child find duty is “triggered” when it has a reason to suspect a disability and reason to suspect that special education services may be needed to address that disability. A parent may trigger a school district’s child find obligation by indicating a need for special education services or requesting an evaluation of her child, but as was the case with Helena, the request need not be explicit.

On or about August 1, 2023, the parent received from the office of Helena’s pediatrician, a completed school health record form, which was based on the pediatrician’s examination of Helena on November 16, 2022. The doctor marked “Other,” in the box for “This student has the following problems that may impact his/her educational experience,” and in the space for comments/recommendations, wrote, “Consider eval for IEP. They report worsening grades/struggling.” This form had initially been provided to Boston Public Schools while Helena was enrolled there. In connection with her enrollment in Norwood, the parent also brought the form to a district office shortly after she received it on August 1, 2023. The hearing officer found that while this form alone might not have been enough under child find to put Norwood on notice, it combined with a number of other factors definitely triggered Norwood’s child find obligation to conduct an evaluation of Helena.

Helena experienced academic difficulty, reflected in at least some of her grades as early as the first quarter of the 2023-2024 school year, and by November the parent was concerned enough to reach out to Helena’s math teacher, who recommended tutoring. By late January, Helena’s guidance counselor was also concerned about Helena’s math grade, enough so that she approached Helena’s math teacher (who recommended extra support) and added math strategies to Helena’s schedule. Around the same time, the parent shared Helena’s December 2023 ADHD diagnosis with the assistant principal, and asked whether there was anything else she needed to do. The parent testified that she believed that informing the assistant principal was sufficient for the school to take whatever steps were necessary for Helena to access support for her ADHD.
The assistant principal flagged this diagnosis as something that should be shared with Helena’s guidance counselor. While the assistant principal was receiving an average of 11 disciplinary referrals a day, there was no evidence that he ever spoke with the guidance counselor
about Helena, inquired as to her academic performance, or followed up with the parent regarding Helena’s ADHD diagnosis. The guidance counselor, who was aware of Helena’s academic struggles, never learned of her ADHD diagnosis, and the assistant principal who was aware of her ADHD diagnosis, never learned of her failing grades and other academic struggles. The hearing officer held that by at least January 30, 2024, there was no question that Norwood had reason to believe that Helena was a child with a disability given the confluence of the school health records in the district’s possession, Helena’s ADHD diagnosis, as well as her poor academic performance and that she needed a special education evaluation and possibly an IEP. Further events reiterated this need: Helena’s third quarter grades issued on April 11, 2024, and her fourth quarter progress report issued on May 15, 2024, reflecting three failing grades.

Given this, the hearing officer then considered three sets of legal standards to determine if Norwood properly excluded Helena after the May 29, 2024 incident. First was the “manifestation determination” requirement for students on IEPs or 504s whereby if it is determined after review that a student’s conduct was caused by or has a direct and substantial relationship to her disability or disabilities, or if the conduct was the direct result of the school district’s failure to implement the student’s IEP, the school district cannot change her placement because of that conduct and the district must return the child to their placement unless the parties agree otherwise. If the student’s conduct is determined not to be a manifestation of
her disability, the relevant disciplinary procedures applicable to children without disabilities may be applied in the same manner and for the same duration as the procedures would be applied to
children without disabilities. The school district, however, must still provide the student with FAPE, though this may occur in an Interim Alternative Educational Setting (IAES).

When a child is not on an IEP or 504 plan, three sets of circumstances mandate the inference that the school district had knowledge of a child’s need for special education services:
(i) the parent of the child has expressed concern in writing to supervisory or administrative personnel of the appropriate educational agency, or a teacher of the child, that the child is in need
of special education and related services; (ii) the parent of the child requested an evaluation of the child pursuant to section 1414(a)(1)(B) of [the IDEA]; or (iii) the teacher of the child, or other personnel of the [school district], has expressed specific concerns about a pattern of behavior demonstrated by the child, directly to the director of special education of such agency or to other supervisory personnel of the agency.

While the hearing officer held that none of these three discrete criterion were present, she nonetheless found that the “totality of the circumstances” deemed Norwood to have knowledge that Helena was a child with a disability which obligated Norwood to conduct a manifestation determination before excluding Helena from school for more than ten days. The hearing officer rejected parent’s request that she conduct a manifestation determination review, instead ordering Norwood to conduct one within five days of the decision.

Norwood nevertheless maintained that it was empowered to remove Helena on an emergency basis pursuant to MGL c. 71 §37H ¾ whereby an assault of a student may result in suspension of up to 90 school days, whereas assault on school staff pursuant to
MGL c. 71 §37H may result in long-term suspension or expulsion from school. Norwood claimed regardless of whether the behavior was a manifestation of the child’s disability, they could have removed Helena to an IAES for not more than 45 school days in limited circumstances, including the infliction of serious bodily injury upon another person on school premises. While the staff member broke her leg in two places while trying to break up the fight, the hearing officer held that while this terrible injury was as a result of the fight, Helena had not “inflicted” it upon the faculty member. Rather it was incidental to the fight, tantamount to an unintended consequence. In addition, Helena’s suspension could not have been extended beyond a current school year pursuant to 603 CMR §53.02, “[n]o long term suspension shall extend beyond the end of the school year in which such suspension is imposed.” There is no exception for matters under MGL c. 71 §37H or MGL c. 71 §37H ¾ .

The hearing officer ordered Norwood to return Helena to school immediately and develop a plan to compensate for school days she improperly missed. In addition, Norwood had to expedite her special education evaluation but would only be obligated to provide services if she were found to be eligible under IDEA or Section 504.