Overview

Commentary on Massachusetts Special Education Decisions: 4th Quarter, 2009, by Joseph B. Green:

December 03, 2009

Requests For Private-School Funding For Language-Based Learning Disabilities

The two out-of-district placement cases from the fourth quarter of 2009 involved students with language-based learning disabilities who were unilaterally placed by their parents at Learning Prep (Newton) and Landmark (Lexington). In the Newton case, the Parents sought reimbursement for the private-school tuition they had already paid, as well as an order that the district write an IEP with a placement at Learning Prep for the current year. In the Lexington case, the Student was in the 12th grade, and the Parents were seeking reimbursement for 10th and 11th grades only. These two decisions, comprising a total of 75 pages of analysis, merit scrutiny by parties involved in disputes over out-of-district placements for students with language-based learning disabilities. The profiles of the students in these two cases are similar, but the outcomes of the hearings are different.

Newton Public Schools, BSEA #09-6466, 15 MSER 353 (2009)

In this Newton case, the Parents and the district agreed that the Student with average verbal and non-verbal reasoning abilities had significant disabilities that required placing him in a substantially separate program for third grade. The substance of the dispute was whether Newton’s substantially separate program was appropriate for Student. Hearing Officer William Crane, after a lengthy analysis, found that when the Parents first asked Newton to pay for Learning Prep, Newton did not have sufficient information to realize that its program was not appropriate for Student. However, by the time of the hearing, Newton had sufficient new information, including information presented for the first time at the hearing, to conclude that its program was not appropriate for the Student. Therefore, the Hearing Officer denied reimbursement to the Parents for the third-grade year at Learning Prep, but ordered Newton to place the Student at Learning Prep from the date of the decision.

The Student’s deficits included a global language impairment (including phonological deficits), integration deficits (including difficulty integrating visual and spatial information), significant verbal and non-verbal memory deficits (affecting, among other things, the ability to decode multiple syllable words), focusing and attention difficulties, including executive functioning deficits, and “very substantial” auditory-processing difficulties. In addition to those disabilities, the Student had a history of seizures, which could cause him to temporarily lose certain learning skills he had already mastered. Not surprisingly, this constellation of disabilities frustrated the Student, sometimes causing him to shut down or regress, and resulted in low self-esteem.

In the second grade, the Student was educated in the mainstream classroom with a 1:1 aide and various services outside the classroom. During the year, the Parents had three independent evaluations done—by a neuropsychologist, an educational specialist, and an audiologist. All three evaluators concluded that the Student needed to be educated in a separate, language-based classroom with small classes and with peers who have similar academic, cognitive, emotional, and social profiles. At the IEP meeting reviewing the Parents’ evaluations, Newton proposed placing the Student for third grade in Reach, Newton’s substantially separate program designed for children with language-based learning difficulties who were in the third, fourth and fifth grades.

In Newton’s Reach program, special-needs students are taught by a full-time special-education teacher and a full-time aide. Math and literacy are taught in small groups. Science and social studies are taught in an integrated classroom with co-teaching by a Reach special-education teacher and a regular-education teacher. Those classes are taught as a whole and then divided into three small groups, mixing typical and special-needs students but with a consideration of each child’s learning needs. For the Student’s third-grade year there would have been six third-grade children in the Reach program and 15 or 16 regular-education students integrated during science and social studies.

Student’s Mother gave the Team the three independent evaluations that recommended Student be taught in a separate language-based program with specific characteristics, some of which Newton’s program did not have. Student’s Mother also visited the Reach third-grade program at the end of Student’s second-grade year. She concluded that the classes would be too large (there were 21 students when she observed) and too chaotic for her son. Parents rejected the IEP and notified Newton that they would be placing their son at Learning Prep and would be seeking public funding for that placement.

The next Team meeting took place in March during Student’s third-grade year at Learning Prep. For fourth grade, Newton again proposed its Reach program and again the Parents rejected the placement and re-enrolled at Learning Prep for fourth grade. Sometime after that Team meeting, the Parents had their neuropsychologist and their educational specialist observe both the Newton Reach program and the Learning Prep. Both evaluators concluded that the Reach program was not appropriate and that Learning Prep was appropriate for the Student.

The BSEA hearing took place in October 2009, shortly after the Student started fourth grade at Learning Prep. A few weeks before the hearing, the Parents’ neuropsychologist and educational specialist both re-evaluated the Student and again observed both Newton’s Reach program and Learning Prep (one week before the hearing). Also one week before the hearing, the audiologist re-tested the Student, and she observed the Student at Learning Prep the day before the hearing. The test results showed that the Student was basically at the same level as when he was tested two years previously. In fact Student’s I.Q. scores had fallen by 10 points in both verbal reasoning and perceptual reasoning. Standardized academic test scores remained the same or dropped slightly even after the year at Learning Prep. Since these re-evaluations and re-observations were done so close to the hearing date, the reports had not been written, but the evaluators testified at the hearing about their new evaluations and new observations.

The Hearing Officer ruled that the Parents were not entitled to reimbursement for third grade at Learning Prep, but they were entitled to a placement at Learning Prep for fourth grade from the date of the decision. The Hearing Officer ruled that at the time the IEP for third grade was written (for the Reach program), although the Team had Parents’ three private evaluations, the Newton Team reasonably could have concluded that Reach would likely meet all the evaluators’ recommendations except for instruction in small groups with peers of a similar profile other than for reading and math. One might think that this is a very important omission from the proposed program, but the Hearing Officer found it “relevant” that “none of the written evaluation reports of Parents’ four experts makes clear the relative importance of their many recommendations.” (Emphasis added.) Therefore, Newton could not be expected to know whether Student would be unable to access the curriculum and make effective progress if that one recommendation—small classes with similar peers— was not implemented but the other recommendations were implemented. The Hearing Officer also pointed out that none of the Parents’ experts had observed the Reach program until after the Team meeting and thus did not provide any input to the Team concerning the appropriateness of the proposed placement at Reach.

When the Newton team met in March of Student’s third-grade year (Student was at Learning Prep) and again proposed the same placement at Reach for fourth grade, the Hearing Officer found that Newton still could reasonably have believed that Reach would be an appropriate placement for Student.

However, the Hearing Officer held that the information provided by the Parents’ evaluators at the hearing itself near the beginning of Student’s fourth-grade year was “substantial, new information regarding Student’s educational needs and whether those needs could be appropriately met within Newton’s Reach program.” The new information showed that Newton’s Reach program would not be appropriate for Student and that Learning Prep is appropriate. Therefore, Newton would be responsible for paying for Learning Prep from the time it received that information—that is, from the date of the decision.

The new information presented at the hearing that the Hearing Officer found to be the critical evidence showing that Newton’s Reach program did not provide a FAPE for the Student was the following:

  1. The three recent re-evaluations done “in anticipation of the hearing” demonstrated that in certain test areas Student had actually declined compared to two years earlier, thus increasing the “urgency” of making sure Student received appropriate services.
  2. The five observations of Newton’s program—by the neuropsychologist and the educational specialist the previous June (after the Team meeting and apparently not shared with Newton until the hearing) and then again by those same evaluators as well as the audiologist in October shortly before the hearing. The evaluators explained why the structure of the Reach program—especially the part of the program where there would be large integrated classes with regular and special-education students—would not be appropriate for Student. Although the same evaluators had made the same recommendations in their evaluations two years earlier—that Student had to be in small classes with similar peers—the Hearing Officer apparently gave the opinions more credence after the evaluators had actually observed Newton’s program and could explain in detail why that type of model was not appropriate for Student.

After finding that the new evidence presented at the hearing proved that Newton’s program was not appropriate, the Hearing Officer found that Learning Prep was appropriate for Student based on the following:

  1. The testimony of the three evaluators that the classes and the pace and content of instruction at Learning Prep were appropriate for Student, based on their observations of the Student at Learning Prep shortly before the hearing (one observation was done the day before the hearing).
  2. “Perhaps most important” was the progress that Student had made in the third grade at Learning Prep in terms of self-esteem and openness to learning as well as better retention of what he had learned.

Summer services and the meaning of “stay-put”

The Newton case also addressed the issue of whether the “stay-put” rule requires the district to continue paying for a particular summer placement that it had paid for in the past. The IEPs for the Student in Newton included speech/language and academic services in the summer in Newton’s own summer program after second and third grades. However, Newton had agreed to pay for Camp Chickami for those two summers, even though Newton believed it was not an appropriate placement for the Student. The Parents claimed that because Newton had agreed to pay for Camp Chickami after second and third grades, Newton should be required to pay for Camp Chickami after fourth grade because that would be the “stay-put” placement. The Hearing Officer disagreed and pointed out that a change in the location of where services are provided is not a change in “placement” unless the change in location would “substantially dilute the quality of a student’s education.” The Hearing Officer found that the Parents had presented no probative evidence addressing the question of what, if any, diminution of services would occur by Student’s being placed within Newton’s summer program as compared to the program at Camp Chickami. Therefore, the Parents did not have stay-put rights that required Newton to continue funding Camp Chickami.

Comment: If parents cannot win both reimbursement and a prospective placement, it is usually much more advantageous to win the placement, especially where, as in this case, the student is young and may need to be at the private school for a number of years. That is because when the IEP specifies a placement at a private school by order of the Hearing Officer, the parents have a right to “stay-put” at that placement and the district will have the burden of proof to show why the student should be brought back to the district. It should be noted that in this case the Parents succeeded in getting a placement at a private school without having the Student try the district’s substantially separate program. However, it should also be noted that the Parents had three evaluators, who each did two evaluations. Even though all the evaluations recommended basically the same thing, the Hearing Officer decided that the Parents were entitled to the private-school placement only after the second set of evaluations by the same evaluators, backed up by five observations of the district’s proposed program. This is obviously quite a daunting expense for the Parents, especially since those costs are not recoverable even when the Parents prevail.

The Newton case deals with many of the principles and issues that arise when parents are seeking reimbursement for tuition and a prospective placement at a private school, especially when the district is offering its own substantially separate program. Some of the general principles that emerge from this case are as follows: First, the Hearing Officer will consider what the district knew or should have known about the Student at the time the IEP was proposed. Second, while at most other kinds of trials the issue is proving what happened at a previous time, at BSEA hearings the issue is not only how the Student was doing previously; the Hearing Officer will consider the current situation, including new evidence presented at the hearing itself. Third, this case shows that there is often an advantage for the parents if they can afford to make a unilateral placement, because success at the private school can be useful to show what model the student needs to access the curriculum and make effective progress. In this case the Hearing Officer did not recite and analyze standardized test scores in detail; instead the Parents were able to prove that the very model proposed by Newton was no longer appropriate for the Student. Fourth, in that regard the Newton case shows the importance of Parents’ having evaluators observe the district’s proposed program—five times in the Newton case—and explain clearly what it is about the proposed program that would not work for the Student.

Lexington Public Schools, BSEA #09-1718, 15 MSER 384 (2009)

The Parents in this case unilaterally placed Student at Landmark after he had completed the ninth grade at Lexington High School. The hearing took place in the fall of Student’s 12th-grade year at Landmark, but the Parents were requesting reimbursement only for 10th and 11th grades, because the Student’s 12th-grade program was a college-preparatory program that was not an approved special-education program. Although the Student attended Landmark as a residential student, the Parents were requesting reimbursement only for the day portion of the Landmark tuition.

Hearing Officer Rosa Figueroa cited the same legal principle as the Hearing Officer in the Newton case—that is, to determine whether Parents are entitled to public funding for a unilateral placement at a private school, a Hearing Officer will “consider the program and services offered by [the district] in light of the information reasonably available to the Team at the time the IEP was developed.” However, while the Hearing Officer in the Newton case denied reimbursement for the first year of the placement but ordered a placement for the second year, the Hearing Officer in the Lexington case ordered Lexington to reimburse the Parents for the first year day tuition at Landmark, but denied the request for reimbursement for the second year.

In the Newton case, the Parents had presented the Team with three independent evaluations before the Team meeting, all of which recommended language-based teaching in small classes with similar peers. Even so, the Hearing Officer found that the district did not have enough information to conclude that its program was not appropriate until three more evaluations and five observations were done the following year. In the Lexington case, the Parents did not present the Team with any evaluations that recommended a separate language-based program before the relevant Team meeting. The Hearing Officer nevertheless found that the Parents were entitled to reimbursement for the placement at Landmark for sophomore year, because Lexington had enough other information to show that the Student had not made effective progress in the Lexington program and would be unlikely to do so in the following year. The information that the Hearing Officer found sufficient to put Lexington on notice that its program was not appropriate included the severe deterioration in the Student’s academic performance and emotional well-being in the ninth grade. That and other information should have led Lexington to conclude that basically the same IEP for 10th grade—full-inclusion with four pullouts a week for “small group” reading and six periods in the resource room for academic support—would not provide the Student a FAPE. Therefore, “faced with the same unsuccessful IEP for Student’s10th grade,” Parents’ decision to place Student at Landmark was warranted.

A new evaluation performed when Student was in the 10th grade at Landmark concluded that Student did need to be in a separate, language-based program in small classes with similar peers (such as Landmark’s program). However, in a rather cruel irony for the Parents, the Hearing Officer found that although Parents were absolutely justified in placing Student at Landmark for 10th grade, Student made so much progress at Landmark in the10th grade (almost all As, huge gains on standardized testing, relief from depression, and newly found self-confidence) that Parents could not meet their burden to prove that Student needed to remain at Landmark for 11th grade. Although the Hearing Officer had found that Student had not made progress in Lexington’s full-inclusion program with pullouts in ninth grade and was unlikely to make progress in 10th grade, the Hearing Officer nevertheless found that Parents did not meet their burden to prove that Student would not be able to access the curriculum and make effective in 11th grade in basically the same program that had been inappropriate for ninth and tenth grades.

Comment: The Parents in this case were fortunate to be awarded reimbursement for the first year of the private placement without any evaluator recommending such a program. However, even without such a recommendation, the Hearing Officer found that the Student had a disastrous year at public school and that Lexington’s program did not provide adequate remediation for the Student’s disabilities, thus justifying the private placement. The private-school placement at Landmark the following year was a tremendous success. The Student himself made a heartfelt statement that “[w]ithout the assistance of Landmark, I would have become another statistic, a worthless creature that roams the earth without a purpose¼. Simply put, Landmark School was my oasis in a desert of despair. Lexington High was that desert and as we all know, people need water to survive.” Certainly in that situation no responsible parents would willingly send their child back to the same inappropriate public-school program. Hearing Officers in other cases have found that the lack of progress in the private-school placement can be a factor in denying reimbursement or a placement. See e.g., Pentucket Regional School District, BSEA #08-5616, 14 MSER 386 (2008) (in denying Parents reimbursement for a second year at Landmark, Hearing Officer noted that Student did not make dramatic progress at Landmark and had even lost ground in some areas). Parents comparing Pentucket and Lexington have to wonder how much progress is required at the private school to justify a continued placement there but is not too much progress such that the placement is no longer needed. Nobody said these cases are easy.

Residence

The school that a student is to attend is determined under MGL c.76, §5, which provides that a public school is not required to enroll a student who does not actually reside in the particular town, unless that attendance is authorized by law or the school committee.

North Attleborough, BSEA #09-4604, 15 MSER 332 (2009)

Although this case arose due to the arraignment of the Student for a felony offense and his resulting suspension from school, the issue before the Hearing Officer was whether this Student resided in North Attleborough for purposes of attending its public schools and receiving special-education services from North Attleborough Public Schools. Hearing Officer Raymond Oliver concluded that Student was not, in fact, a resident of North Attleborough based, in large part, on the investigations completed by North Attleborough’s Supervisor of Attendance. Residency may not always be easy to discern where a student’s parents are divorced and live in different public-school districts. Here, although Student’s Parents were divorced, they both resided in their respective homes in Plainville, where Student also resided and listed as his home address on his driver’s license, and where his younger sibling attended school. Despite Student’s and his Mother’s testimony that they resided at addresses in both North Attleborough and Plainville, Hearing Officer Oliver found no indicia of actual residence at the North Attleborough address. The Student’s only link to North Attleborough was an apartment in which they claimed to sleep certain week nights; however, Hearing Officer Oliver determined that, even if that were true, it would not be sufficient to establish Student’s residency in North Attleborough.

Marlborough Public Schools, BSEA #10-1450, 15 MSER 381 (2009)

This matter involved a dispute between Marlborough and Falmouth over which district had fiscal and programmatic responsibility for a special-education Student who was in the residential program at Landmark School, in Beverly, and whose divorced Parents lived in different towns. The Student lived in Marlborough with her mother, who had primary physical custody. Her father had lived in Falmouth for approximately two years prior to Student’s initial placement at Landmark, but Student had never attended school in Falmouth or even lived in Falmouth (the father had visitation for rotating holidays and for three weeks during summer vacation). Marlborough claimed that Falmouth had to share fiscal responsibility for Student’s placement because 603 CMR 28.10(3) provides that when a student is placed at a residential special-education school, the parental residence determines the responsible school district. Marlborough claimed that Falmouth was also a parental residence and should be equally responsible for the Student’s free, appropriate public education. Hearing Officer Lindsay Byrne affirmed the DESE’s assignment of sole fiscal and programmatic responsibility to Marlborough based upon the parties’ agreement that the Student resides in Marlborough, which is the center of her family and civil life. The Hearing Officer held that the provisions of 603 CMR 28.10(3) must be read to be consistent with MGL c.71B and Walker v. Franklin, 416 Mass. 291 (1993), which direct educational responsibility to the child’s town of residence, not the parents’.

Qualifications and competency of district providers

Hudson Public Schools, BSEA #08-3722, 15 MSER 313 (2008)

The Parents in this case claimed that the district’s IEP and placement failed to provide FAPE, largely because the home-based providers and occupational therapist provided by the district were not sufficiently trained and qualified to provide services to the Student, who has severe autism and global developmental delays. The Parents’ experts concluded that the Student was generally deriving benefit from the district’s program, but made specific recommendations, including but not limited to the hours of home services and consultation that should be provided and the levels of education for the various district program providers. At the hearing, the Parents submitted the reports of their independent experts, but the experts did not testify. Thus, when the district’s witnesses testified that such credentials were unnecessary, the Parents had no evidence to contradict that testimony, because their experts’ reports cited no factual basis for their recommendations regarding credentials they claimed were necessary. Moreover, the IDEA does not provide authority to Parents or Hearing Officers to direct school districts to designate particular individuals to provide services to students, unless the district’s choice would deprive the student of FAPE.

Comment: This case illustrates the importance of not only seeking high-quality independent experts but also having those experts testify at hearing to explain their recommendations in order to meet the burden of persuasion.

District funding of independent evaluations

Attleboro Public Schools, BSEA #09-3926, 15 MSER 335 (2009)1

The narrow issue in this matter was whether the district must pay for an independent evaluation requested by Parents on behalf of their child who qualifies for free or reduced-cost lunch, even when the Parents did not disagree with the district’s evaluations. Attleboro’s position was that its three-year reevaluation was appropriate and, since the Parents did not disagree with the results obtained in the district’s testing, it was not obligated to pay for the Parents’ requested independent evaluation. Hearing Officer Raymond Oliver looked to both the federal law (20 USC § 1415(b)(1) and 34 DFR 300.502(b)) and Massachusetts law (MGL c.71B, §3 and 603 CMR 28.04(5)) in concluding that Massachusetts special-education law procedurally and substantively exceeds the federal standards for those who qualify for free or reduced-cost lunch and prevails. Unlike the federal regulations, Massachusetts provides for full district funding of parentally requested independent evaluations if the family income does not exceed 400% of the federal poverty level and the Student is eligible for free or reduced-cost lunch.

Comment: This opinion is important for finding that, regardless of whether the a parent agrees with the district’s evaluations, Massachusetts law requires the district to fund independent evaluations equivalent to the types of district assessments requested by low-income parents whose children qualify for free or reduced lunch.

Lexington Public School, BSEA #10-2604, 15 MSE 372 (2009)

In this case, Lexington asked Hearing Officer Rosa Figueroa to (i) deny the Parents’ request for independent evaluations, including adaptive physical education and functional living skills, (ii) deny the Parents’ request for reimbursement of costs for their independent neuropsychological evaluation, and (iii) rule that Lexington was not required to pay amounts greater than the state rates for independent evaluations in the areas of speech and language, assistive technology, vocational/transitional, and occupational therapy. Hearing Officer Figueroa determined that, with the exception of the physical-therapy evaluation, Lexington’s other evaluations were all appropriate; therefore, it was not required to pay in excess of the state rates for independent evaluations in other areas. Additionally, Parents’ request for reimbursement of the independent neuropsychological evaluation had previously been denied by another Hearing Officer in a separate matter, so the Parents were precluded from bringing the same claim again.

Residential placement

Parents seeking residential placement may face an uphill battle due to the restrictiveness of the placement, as well as the cost of tuition. Therefore, Parents should be highly prepared before seeking such a hearing at the BSEA, including having highly qualified, independent experts prepared to testify on their behalf as to the need for residential placement.

Boston Public School, BSEA #09-3999, 15 MSER 338 (2009)

The Parent in this case contended that Boston’s in-district day placement was unable to provide Student with FAPE and that he required a residential placement in order to address appropriately his pervasive developmental disorder–not otherwise specified (PDD-NOS) and mild mental retardation (MR). Parent argued that the residential placement was required in order for Student to access the curriculum, generalize skills, and make progress in his social and emotional skills. However, the Parent failed to present evidence at hearing regarding (i) any specific residential placement appropriate for Student, (ii) evidence of any such placement where he had applied and been accepted, or (iii) that any person who had educated or evaluated Student recommended residential placement. The Parent also failed to provide any expert testimony at hearing supporting the request for residential placement. In contrast, Hearing Officer Raymond Oliver heard testimony from a consultant for Boston who reviewed Student’s records and whose testimony was therefore weighed accordingly. Boston’s consultant testified as to Student’s progress in Boston’s program (which included an extended-year program through Wediko Children’s Services), finding nothing in the documentation, interviews, or observations that indicated Student’s need for residential placement. Based upon evidence that intensive family services would be recommended, Hearing Officer Oliver ordered that Boston’s IEPs provided FAPE and Student did not require a residential placement, but that evidence supported an extended-day program five days a week for two hours per day to assist Student and Parent in carryover of academics and skills.

Comment: Note that the Hearing Officer ordered an extended-day program, including a specific amount of time and purpose for the program, although the Parent had not requested it.

New Bedford Public Schools, BSEA #09-3103, 15 MSER 324 (2009)

In this case, Hearing Officer Raymond Oliver was asked to determine the issue of whether a residential placement made by the Department of Children and Families (“DCF”), who had custody of Student through a CHINS proceeding, was a “stay-put” placement. Contrary to the Parent’s position that DCF’s placement created stay-put rights, DCF argued that its residential placement of Student was for non-educational reasons and did not constitute an educational placement or create stay-put rights. New Bedford, where the Student and his Parent resided, agreed with DCF and pointed out that DCF had not consulted with New Bedford Public Schools in making the placement nor pursued any programmatic or fiscal responsibility for the placement from New Bedford. Finding that the residential placement had never been proposed by Student’s Team or included in an IEP accepted by the Parent, Hearing Officer Oliver made the logical order that Student’s stay-put placement was not DCF’s residential placement, but was the substantially separate in-district placement contained within the last accepted IEP.

Unilateral placement reimbursement

Public School District, BSEA #08-7930, 15 MSER 403 (2009)

This particular case is, hopefully, not factually applicable to many other special-education cases, in that this Student became involved in a personal relationship with one of her teachers, resulting in her being diagnosed with post-traumatic stress disorder (PTSD). The issues before Hearing Officer William Crane were whether the Parent could get reimbursement for the private placement of her daughter under §504, and whether the next year’s IEP provided FAPE. Hearing Officer Crane determined that the IEP did provide FAPE, and because the Parent had refused to consent to the district’s requested evaluations, she was not entitled to reimbursement for her unilateral placement.

Comment: Unless a district’s requested evaluations are harassing or otherwise burdensome, parents should generally allow the district to conduct the evaluations it requests. Parents need to show that they are willing to work cooperatively with the district for the benefit of the student’s education, and are willing to provide the district with the information necessary to make its educational decisions for the student.

  1. A member of this Commentator’s firm represented the Parents and Student in this matter.

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