Commentary on Massachusetts Special Education Decisions: 4th Quarter, 2010, by Lawrence Kotin:

December 03, 2010

This quarterly Commentary reviews thirteen decisions by the Bureau of Special Education Appeals (BSEA). As usual, these decisions span a wide range of issues. Four are of particular interest because they offer guidance on issues which are commonly in dispute between parents and school districts. Two others involve the still unsettled issue of the jurisdiction of the BSEA to interpret and enforce the terms of settlement agreements reached privately or through the use of a BSEA mediator. Two are decisions against pro se parents who were forced into the appeals process by school districts who initiated hearing requests. The remaining five involve a variety of issues which do not lend themselves to easy categorization.

District’s Finding Of Ineligibility Reversed

In Re: Uxbridge Public Schools, 16 MSER 388 (2010) (Crane), concerned a six year old first grader in an inclusion classroom. The student was described as friendly, outgoing, and energetic with cognitive ability in the average to high average range. He also was described as having good academic skills and expressive and receptive communication skills in the average range, with some specific areas of weakness, including difficulty following complex directions and answering open-ended questions. He also demonstrated weaknesses in narrative production, word retrieval, language pragmatics and social skills, but the extent of these weaknesses was in dispute. He was diagnosed with PDD (NOS) and had received early intervention services. Uxbridge evaluated him in the fall of 2007 (following his third birthday), finding him to be eligible to receive special education and related services. The IEP had a single goal for social development with three objectives and provided for his participation in a social skills group.

Beginning in the fall of 2008, Uxbridge began observing the student to determine the extent to which he was meeting the three objectives in the IEP. In the spring of 2009, Uxbridge also conducted a series of assessments and hired a consultant to complete a social skills assessment for the specific purpose of determining the extent to which the student had achieved the three objectives in the IEP. The Team convened on April 28, 2009 and determined, on the basis of the reports of the observations and assessments, that the student had achieved the three objectives and, therefore, was no longer eligible to receive special education and related services. By letter of May 13, 2009 to the parents, the Team discontinued his services, effective after the end of the school year. During the summer, the parents rejected the finding of ineligibility and filed a hearing request and a motion for stay put. Pursuant to a ruling of the hearing officer on September 1, 2009 allowing the parents’ motion for stay put, some (but not all) of the student’s special education services were reinstated. One service that was not reinstated was the student’s participation in a social skills group.

The parents’ case at the hearing consisted of the testimony of an independent neuropsychologist and a speech and language pathologist, both from the Integrated Center for Child Development ICCD), and the testimony of the student’s parents, both of whom were special education teachers. Both of the independent evaluators had evaluated the student subsequent to the finding of ineligibility. The neuropsychologist had also conducted a classroom observation of the student in his program, prior to the discontinuation of the student’s special education services. The district’s case consisted of the testimony of the teachers and other services providers who had worked with the student as well as the testimony of the district’s consultant who had completed the social assessment.

The hearing officer began his analysis by articulating the two part test for determining eligibility: 1) whether the student had one or more of the requisite disabilities; and, if so, 2) whether, because of such disability, he required special education or related services in order to make effective progress. Regarding the first part, the hearing officer considered two potential disabilities, each of which was supported by the evidence- “autism” and “developmental delay.” While the hearing officer acknowledged that the student had already been diagnosed with PDD, NOS, which was within the autism spectrum, he concluded that the Massachusetts regulatory definition of “developmental disability” appeared to fit the student’s profile “more easily” than the definition of “autism.”

The hearing officer then articulated the federal and state standards defining the second part of the eligibility determination. Regarding the federal standard, he noted that of particular importance was that the student’s program had to address his “unique needs.” Regarding the state standard, the hearing officer stressed the fact that the program had to be designed to enable the student “to make documented growth in the acquisition of knowledge and skills, including social/emotional development, within the general education program, with or without accommodations, according to chronological age and developmental expectations, the individual educational potential of the student, and the learning standards set forth in the Massachusetts Curriculum Frameworks and the curriculum of the district . . .”

Combining the federal and state mandates, the hearing officer concluded that the parents and their independent experts “provided detailed and comprehensive evidence, supported by standardized testing, clinical observation, and observations by the parents, that student has substantial deficits with respect to social and pragmatic language (including non-verbal language).” On the other hand, the hearing officer found that “the testimony and evaluation report of [the district’s] one witness with expertise in the area of communication generally and language in particular” were “limited in probative value” because she did not test the student in the area of language pragmatics and her testimony was “general in nature, with little, if any, detailed or focused testimony responding to the particular concerns expressed by [the ICCD evaluators] relative to student’s social and language pragmatic deficits.”

Similarly, the hearing officer found that while the district’s consultant and the lead teacher both found that the student “generally met each of the three [social] objectives,” this finding did not rebut or diminish the concerns raised by the parents’ independent experts. Similarly, the hearing officer concluded that the testimony of the student’s former and current teachers that he was making good progress academically and socially “did not persuasively rebut the testimony and reports of [the ICCD experts], together with the credible observations of the parents.”

The hearing officer then addressed the issue of the services to be provided to the student. First, he found that the evidence was persuasive that the student needed to participate in a social skills group. He then found the district’s witnesses to be persuasive that only speech and language and occupational therapy consultation were required rather than the direct speech and language and occupational therapy services sought by the parents. In this regard, the parents had also requested compensatory services because of the discontinuation by the district of certain services despite the stay put order of the hearing officer. Here, the hearing officer noted that while his stay put order was clear, an ambiguity had been created as the result of an Advisory issued by the DESE which stated incorrectly that a hearing request by the parents was necessary to trigger their stay put rights and that the mere rejection of an IEP was not sufficient.2 For this reason and because of his determination that the direct speech and language and occupational therapy services which the district failed to continue providing were not essential for the student, the hearing officer did not hold the district to the usual strict standard of compliance and ordered compensatory services only to remedy the discontinuation of the student’s participation in a social skills group. The hearing officer declined to adjudicate the final concern of the parents that they were charged an excessive amount per page for the copies of their son’s records because of his view that this was an issue of regular education governed by the regular education student records regulations and not of direct relevance to his decision.

This decision provides an excellent analysis of the federal and state standards for determining a student’s eligibility for special education and related services and how those standards should be applied in a particular case. It also underlines the importance to the outcome of the case, of witnesses who are very highly qualified with respect to their knowledge of the subject matter at issue and who have had sufficient first-hand experience with the student so that they can apply that knowledge in a credible and persuasive manner to the hearing officer.

Parents Prevail In Securing Residential Placement Over District’s Day Program For Older Students

In In Re: Douglas Public Schools, 16 MSER 410(2010) (Crane), the same Hearing Officer as in the Uxbridge case, supra, considered the issue of whether a district could offer an appropriate day program for a nineteen-and-a-half year old student with a complex profile or whether the student required a residential program. The student was diagnosed with substantial cognitive delays (the most recent cognitive testing showed him to be in the bottom 0.1 percentile when compared to same age peers, although the evaluator indicated that these scores were lower than prior evaluations and might not be accurate). The student also had substantial language processing deficits, with extremely low auditory processing test scores. In addition, the student had a substantial attention deficit, frequently requiring monitoring by a teacher or staff person for the student to remain focused. The student also had a history of medical issues and had been diagnosed with a schizoaffective disorder that required treatment with anti- psychotic medications, although his mental health issues appeared to have stabilized over the past year or more. Moreover, the student had severely limited social skills, particularly with peers. As a result, he had never had a friend his age.

During his four years in high school, the student was in the same substantially separate program with the same teacher. It was undisputed that the student’s social skills for purposes of communicating and interacting with his peers were largely undeveloped and had remained at essentially the same level during the four years. It was also undisputed that there was no appropriate peer group for the student. In this regard, the parents’ psychoeducational expert convinced the hearing officer that “[i]n order for the Student to develop skills necessary for living and working in the community, it is essential that he develop social skills, particularly pragmatic skills needed to communicate and interact appropriately and meaningfully with his peers; and further, that in order for Student to have the opportunity to develop these skills, it is imperative that he interact socially with and learn with a substantially larger group of peers than is available within the Douglas Public Schools.” The expert concluded her testimony by stating that “Douglas’s proposal of instruction with two peers in the classroom and participation in a possible social skills group with his peers (as envisioned by the proposed IEP) [w]as not sufficient.”

The hearing officer concluded that only a residential program would enable the student to generalize skills learned in the classroom to the community at large and that such generalization of skills was critical to the student’s ability to function independently. The hearing officer then found that the Cardinal Cushing residential program requested by the parents was able to provide the instruction and supervision which the student required.

Of critical importance to this decision was the testimony of the parents’ independent psychoeducational evaluator, whom the hearing officer found to be a very credible witness. Also, the parents had accepted every IEP offered for high school and the student had failed to make effective progress or regressed under those IEPs. In addition, the student was 19 ½ years old with a brief “window of opportunity” to gain the skills he needed in order to live as independently as possible in the community. Finally, the IEP did not include a transition plan, the omission of which was both a major procedural and substantive violation which greatly weakened the District’s case.

Parent Wins Two Years Retroactive And One Year’s Prospective Funding For The Student’s Placement In The Landmark School

In In Re: Belmont Public Schools, 16 MSER 431(2010) (Figueroa), the parent of a seventeen year old senior at the Landmark school sought retroactive and prospective funding for his placement which began in tenth grade. The student was of average cognitive ability and was diagnosed with a specific learning disability (Dyslexia) and ADHD. He also presented with deficits in visual-motor integration and fine motor skills. He had struggled academically since kindergarten. The independent experts who evaluated him had all recommended that he be provided a substantially separate language-based program. The district defended by arguing that the student did not require such a program and that he had made effective progress in the district’s standard inclusion program.

After an extensive review of the evidence, the hearing officer ruled in favor of the parent, ordering retroactive reimbursement for the student’s time at Landmark and prospective placement at Landmark for the remainder of twelfth grade. As in theUxbridge and Douglas cases, supra, the hearing officer in this case found the parents’ experts to be highly persuasive because of their extensive qualifications, their knowledge of the subject matter about which they were testifying, and their familiarity with the student. On the other hand, the hearing officer found the testimony of the district’s witnesses to lack credibility and to be internally inconsistent. Particularly damaging to the district’s case was the testimony of the special education director that the district’s “one size fits all” inclusion program was appropriate for the student because it was “an excellent program,” regardless of the student’s need for a substantially separate language-based program which had consistently been recommended for him. Also damaging to the district’s case were the lack of qualifications of certain of its witnesses and the over-zealous defense of the district’s proposed program by other of its witnesses, which far exceeded their knowledge of the subject matter at issue, the student, and the Landmark School program.

Parent Wins Placement At Learning Skills Academy Over A Partial Inclusion Program

In Re: Westford Public Schools, 16 MSER 459 (2010) (Figueroa), was decided by the same hearing officer as in the Belmont case, supra. The student in this case was a thirteen year old seventh grader diagnosed with a Non-Verbal Learning Disorder, a Central Auditory Processing Disorder, and a seizure disorder, all of which adversely affected her reading comprehension, organization, math and social pragmatic skills. The district did not dispute these diagnoses but took the position that the student, who was of average intelligence, had made effective progress in her sixth grade inclusion program. The district based this opinion on progress reports, other teacher reports, report cards on which the student received grades of A and B, and her reported class participation.

After an extensive review of the evidence, the hearing officer found the parents’ experts to be very persuasive and the districts’ witnesses to be far less credible. In particular, she found that the district’s witnesses lacked sufficient knowledge of the student to support their opinions and that they compromised their credibility by over-zealously defending the district’s proposed program at the expense of more truthful and accurate testimony. Ultimately, she found that the student had failed to make effective progress in the district’s programs and had no friends after years in those programs. The hearing officer ordered that the district fund the student’s placement at Learning Skills Academically, both retroactively and prospectively.

Two Cases Concerning The Jurisdiction Of The BSEA To Interpret And Enforce The Terms Of Settlement Agreements

In In Re: Masconomet Regional School District, 16 MSER 408 (2010) (Oliver), the student, who was a fourteen year old ninth grader, had been placed by the district at the Landmark School for grade 3 and then, pursuant to a settlement agreement, for grades 4, 5 and 6. During the summer after sixth grade, the parents entered into an agreement following a BSEA mediation, which provided for their son’s continued placement at the Landmark School for seventh and eighth grades. Pursuant to said agreement, the parents waived their right to “placement pending appeal,” (or “stay put”) at Landmark for ninth grade, and also agreed to placement in the district’s proposed program for ninth grade.

At the end of the second settlement period, the parents rejected the proposed IEP and program for ninth grade and unilaterally placed their son at the Landmark School for ninth grade. They then filed a hearing request seeking an order requiring the district to fund this placement. The parents’ position was that the proposed IEP and program were inappropriate and that the district could not be relieved of its obligation to provide an appropriate IEP and program for their son. In other words, the parents argued that as a matter of public policy, the mediated agreement could not take precedence over their son’s entitlement to an appropriate IEP and program.

The district’s position was that the mediated agreement was legally binding on both parties. The district pointed out that the agreement provided for the student’s placement at the Landmark School for two years in consideration for the parents’ waiver of placement pending appeal for ninth grade and their agreement to place their son in the district’s proposed program for that year. The district filed a motion to dismiss the parents’ hearing request on the grounds that, according to the terms of the mediated agreement, the parents waived their right to seek funding from the district for their unilateral placement at Landmark and agreed to place their son in the district’s proposed program for ninth grade.

In granting the district’s motion to dismiss, the hearing officer noted that the mediation was presided over by “a trained, highly experienced mediator” and that the parents had been represented “by an experienced advocate” while the district had been unrepresented. He then quoted the disputed language from the agreement: “Parent agrees to waive [their son’s] stay put rights to a placement at Landmark at the end of the 2009-2010 SY; meaning that they agree to placement at a Masconomet program beginning with the 2010-2011 school year” (emphasis in original).3

The hearing officer went on to say that there was no dispute between the parties about the meaning of the language of the agreement and that the agreement reflected “a truequid pro quo”- the parents received the certainty of two years of funding for Landmark in exchange for the district having the certainty that, at the end of the two years, the student would be placed in the proposed district program (or the parents could continue their son’s placement at the Landmark School at their own expense). The hearing officer also concluded that both the federal and state special education laws encourage the resolution of disputes through agreements between the parties (e.g., the provisions for mediation and resolution meetings) and that the jurisdiction of the BSEA to interpret and enforce such agreements is included within the BSEA’s broad jurisdictional mandate in IDEA to hear disputes concerning the “identification, evaluation or educational placement of the child or the provision of a free and appropriate education to such child.”

In In Re: Lincoln-Sudbury Public Schools and Rachel R., 16 MSER 424 (2010) (Berman), the hearing officer reached a different conclusion about the BSEA’s jurisdiction to interpret and enforce settlement agreements. The parents in this case requested a hearing seeking reimbursement for a history course provided by a home tutor. Among other arguments, the parents asserted that the district violated the terms of two settlement agreements reached through BSEA mediation and one private agreement, one or more of which provided for them to be reimbursed for the costs of the tutor and all three of which were attached to and incorporated into the student’s IEPs for the 2007- 2008, 2008-2009 and part of the 2009-2010 school years. The district filed a motion to dismiss on a number of grounds4 including, among others, that the BSEA lacked jurisdiction to enforce those agreements.

In granting the district’s motion, the hearing officer stated:

Nothing in the IDEA, the Massachusetts special education law or the regulations promulgated under those statutes grants a BSEA Hearing Officer the authority to enforce agreements. IDEA 2004 specifically added language specifying that mediated agreements were “enforceable in any State court of competent jurisdiction or in a district court of the United States.” 20 USC §1415 (e) (2) (F) (iii). The statutory language is clear that the BSEA lacks authority to enforce mediated agreements. Parents’ recourse is in a different forum.

The hearing officer found that it made no difference that one of the settlement agreements included the statement that “the parties agree . . . that the BSEA will have authority to enforce the terms of this agreement . . . ” The hearing officer stated that “such language is insufficient to bind the BSEA where it otherwise lacks statutory authority, and enforcement of agreements is not one of the powers specifically granted to BSEA hearing officers.” Regarding the fact that the agreements contained a clause incorporating them into and attaching them to the students’ IEPs, the hearing officer qualified her ruling on the BSEA’s jurisdiction stating that: “The BSEA may only take jurisdiction over IEPs and over those portions of the agreement that are appropriate components of an IEP and have been incorporated by reference into the IEP.”

While both decisions make cogent arguments about the jurisdiction of the BSEA to interpret and enforce settlement agreements, they arrive at opposite conclusions. It is this commentator’s view that whether a settlement agreement will be interpreted and enforced by the BSEA should not be a function of which hearing officer is assigned to the case. Instead, the BSEA should adopt a uniform policy on this issue. In this regard, this commentator finds the analysis in In Re: Masconomet Regional School District, supra, to be the more persuasive of the two because it avoids the time and cost involved in having to utilize a separate, non-specialized forum to enforce an agreement. Also, it furthers the policy in federal and state law of encouraging settlements by simplifying their enforcement in the few cases where that might be necessary.

Two Decisions Illustrate The Plight Of Pro Se Parents Forced Into The Appeal Process By Districts Who File Hearing Requests

In Re: Bridgewater-Raynham Regional School District, 16 MSER 372 (2010) (Putney-Yaceshyn), the hearing officer addressed the issue of the appropriateness of an IEP for a fifteen-year-old “school choice” student with a diagnosis of ADHD and a language-based learning disability. The student was described as having difficulty engaging independently in class, but wanting to do well and often vocalizing concern over his poor academic progress and grades. He was also described as having a severe expressive and receptive language disability and depressed processing speed. The hearing officer noted as one example of the student’s language disability that “[w]hen he had problems with peers, he was not able to state who the peers were or what the problem was.”

The student was repeating his eighth grade year because of poor attendance. At the time of the hearing in late September of the second eighth grade year, he had been in school only a couple of days. The previous year, he had been absent 93 days and late 27 days, causing him to fail to be promoted.

During the fall of his first eighth grade year, the student had been referred by his teachers for an evaluation because of their concerns about his inability to express himself and to function in the classroom. The student’s mother (who was a single parent) consented to the evaluation but it was difficult for the district to engage her in the process. The reason for this was unclear, except that she told one staff member “that she did not trust school personnel based upon her experiences in her son’s prior school district.” The student’s mother attended a Team meeting in January of the first eighth grade year at which time the Team proposed that her son attend the district’s “language-based program” rather than continuing to attend the inclusion program he was currently attending.

The student ceased attending school at all in March of the first eighth grade year following an incident where the student “was in an auditorium when he was hit in the head by a shoe that was thrown by another student.” The student’s mother told the district staff the student had suffered a concussion. The mother was asked to bring the medical documentation of the concussion to a Team meeting. The mother came to the meeting without the documentation and, when she was observed at the beginning of the meeting to be placing a tape recorder in her purse, the district abruptly ended the meeting.

Following this abbreviated meeting, the student’s mother did not respond to the proposed IEP for the remainder of the school year. She subsequently rejected the proposed IEP on September 11 of the second eighth grade year. When contacted by school staff about her rejection of the IEP, she stated that because the school in which the self-contained program was located was in Raynham and was further from her home than the program her son had been attending in Bridgewater, she was concerned she would lose her job because of the extra time involved in driving her son to school. Also, she had previously indicated that she was opposed to having her son leave the inclusion program for the self-contained program.

When the student failed to return to school at all during the second eighth grade year, the district called the police and a CHINS was filed against the mother. The net result of all of these efforts was that the CHINS was not enforced and the student never returned to school. Since the student’s mother did not attend or otherwise participate in the hearing, the hearing officer had little choice but to find the district’s proposed IEP to be appropriate, despite the fact that it contained no provision to assure the student’s safety.

In In Re: Springfield Public Schools and Malcolm, 16 MSER 385 (2010) (Byrne), the single pro se parent of a seventeen-year-old eleventh grade student with a history of regional complex pain syndrome and significant depression, refused to send her son to school and requested that he be placed instead “in a private special education school.” In ruling for the district’s program, the hearing officer found that the IEP (which had been accepted by the parent) was appropriate and fully implemented, despite the fact that the student had left school after April 13, 2010, and refuses to return and that the parent refused to participate in the hearing.

Apparently in response to concerns which the parent had previously raised, the science teacher, who was also the Team liaison, testified that she had never observed or become aware of, any abuse, harassment, or bullying as she later learned had been alleged by the parent. She also never observed the student display any symptoms of anxiety, depression or physical/emotional exhaustion as had also been reported.

Since the parent did not appear at the hearing, there was no opportunity for the hearing officer to hear any explanation of the parent’s apparent reference to the fact that her son had been harassed and bullied and, as a result, was suffering from anxiety, depression and physical/emotional exhaustion. In this regard, the hearing officer stated that “there was no evidence in this record contrary to or different from the recommendations of the evaluators and teachers, or the observations and expert conclusions of Malcolm’s teachers, counselor and the administrators responsible for developing and implementing Malcolm’s special education program.”

Of concern to this commentator is that in both of these cases, there was a strong suggestion that the students had been bullied and otherwise mistreated causing them to suffer physical and emotional harm and causing their parents to refuse to allow them to continue to attend school (apparently the only recourse for these parents and others similarly situated who lack the resources and sophistication to use the appeals process to their advantage). As a result, the parents found themselves in the ironic position of being involuntary participants as defendants in an appeals process in which they might more appropriately have been plaintiffs if they had the means and sophistication to request a hearing on their sons’ behalf. Not surprisingly, in both cases, the parents refused to attend the hearings which they very likely viewed as just another manifestation of a system which could not educate their children or, at a minimum, guarantee their safety, and which then proceeded to blame the victims.

Nevertheless, the hearings went forward without the presence of the parents to reach the predictable result in both cases. While the result in each case was correct from an evidentiary point of view since only one side presented unrebutted evidence, it is unfortunate that a mechanism does not exist for parents (like those in these two cases), who might well have legitimate grievances, to be able to have their concerns heard and responded to in a way which would enable their children to attend school safely and obviate the need for perfunctory and time-consuming hearings where the outcome is a foregone conclusion.

Miscellaneous Decisions

In In Re: Westwood Public Schools, 16 MSER 378 (2010) (Figueroa) [10/7/2009], the hearing officer refused to grant summary judgment in favor of the district where the parent was arguing for a higher rate than that allowed by the state so that she could hire a neuropsychologist with the appropriate expertise to be able to evaluate her son with Asperger’s Syndrome. In denying the district’s motion, the hearing officer ruled that since it was possible as a matter of law for the parent to prove that she could qualify for the “unique circumstances” exception to 603 CMR 28.04 (5) (a), summary judgment was inappropriate and a hearing was required.

In In Re: Pentucket Regional School District, 16 MSER 423 (2010) (Berman), the hearing officer refused to hear the parents’ post-hearing motion for partial summary judgment where the hearing had been completed and the subject matter of the motion could have been addressed during the hearing or before the record of the hearing had been closed.

In In Re: Chicopee Public Schools, 16 MSER 429 (2010) (Byrne), the hearing officer ruled in favor of a pro se parent who argued that door-to-door special transportation to a substantially separate academic and vocational program was required to continue for a fifteen-year-old tenth grade student who had been receiving such transportation for many years. The parent had rejected that part of the district’s proposed IEP which specified a change to regular transportation. The hearing officer agreed with the parents’ position that the district (which had the burden of proof as the party trying to change thestatus quo) had failed to produce an assessment or any other evidence that a change to regular transportation was appropriate. Also, in response to the district’s argument that regular transportation constituted the “least restrictive environment,” the hearing officer ruled that since transportation was a related service, the LRE requirement did not apply.

In In Re: Northampton Public Schools and Khaled, 16 MSER 421 (2010) (Byrne), the parents had accepted an IEP providing for their nine-year-old son’s residential placement at the Perkins School for the Blind. The student began attending Perkins but the parents transported him to and from home on a daily basis because of their belief that he required a gradual transition starting as a day student for some period of time before he became a resident. The parents filed a Motion for an Interim Order requesting reimbursement for transportation while the student was a day student and for certain services to supplement the Perkins program. The hearing officer denied their request for transportation reimbursement and some of the requested services on the grounds that these were not part of the IEP which the parents signed and Perkins did not require them to be provided to be able to implement the IEP. The hearing officer ruled that some of the services requested should be the subject of a Team meeting since it was not clear if they should be provided.

In In Re: Natick School District, 16 MSER 457 (2010) (Crane), the parents and district were engaged in a dispute over the appropriate program during the 2009-2010 school year for a thirteen-year- old sixth grade student “diagnosed with an intellectual disability that impacts her receptive and expressive language.” During the summer of 2009, the student was accepted by Christa McAuliffe Regional Charter Public Middle School (McAuliffe). The parents sought reimbursement from the district for certain expenses incurred during the 2008-2009 school year and for expenses associated with their daughter’s placement in McAuliffe during the 2009-2010 school year. These latter expenses included costs of private tutoring to supplement the McAuliffe program, speech and language services, transportation to and from McAuliffe and lost wages of the student’s father resulting from time spent by him researching traveling, consulting, etc. for the purpose of creating a program at McAuliffe because of the district’s inability to offer an appropriate program.

The district filed a motion for partial dismissal of those claims of the parents relating to the 2009-2010 school year. In granting the motion, the hearing officer ruled that since McAuliffe is, in effect, a separate school district, Natick was not responsible for the student’s placement there. In so ruling, the hearing officer rejected the parents’ analogy comparing placement at McAuliffe to a unilateral placement in a private school for which the parents might have a claim, finding that since McAuliffe was a separate and independent school district, Natick was not responsible for any costs relating to the placement at McAuliffe.


This review illustrates the wide range of issues heard by the BSEA and the great care given to each one. These cases provide helpful guidance to participants in BSEA proceedings and valuable insight into the relationship between parents and school districts and the BSEA’s role in defining the nature and limits of that relationship.

Please Note:

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

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

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