Commentary on Massachusetts Special Education Decisions: 4th Quarter, 2011, by Lawrence Kotin:

December 03, 2011

This quarterly Commentary reviews eleven decisions by the Bureau of Special Education Appeals (BSEA). Five decisions involve the issue of “stay put,” offering useful guidance on that issue. Three concern the issue of assignment of responsibility for students by the DESE, and three others decide substantive issue of placement.

Hearing Officer Refuses to Elevate Form Over Substance in Determining Stay Put

In Re: Taunton Public Schools and Rahul, BSEA #12-0399, 17 MSER 329 (10/26/11), concerned a sixteen-year-old student diagnosed with autism, tuberous sclerosis, a seizure disorder, and pica. He was non-verbal and did not communicate independently except for a few hand signs. The last accepted IEP provided for 35 hours of 1:1 ABA instruction, 52 weeks per year. The services were provided partially in school (4 hours per day) and partially at home (3 hours per day) by the same provider. During the winter and spring of the student’s last year in middle school, the district developed an IEP for his first year of high school, providing for the same number of hours of ABA therapy as he had been receiving, but changing the setting to six hours per day in a substantially separate classroom in the high school and one hour per day at home. The parents rejected the IEP but accepted the placement. Four days later, they sent an e-mail to the school, explaining that they had accepted the placement because they wanted their son to attend high school in his own community but that they disagreed with the decision to reduce and reallocate the home ABA services. In addition, they objected to the placement because it was in a classroom that they could not evaluate because it did not yet exist. They ended by explicitly invoking their son’s “stay put” right.

During the summer, the parents and district met to develop a transition plan for the student’s entry to high school. Part of the plan included the student’s extended year program. The parents accepted the plan and then revoked their consent at the beginning of the school year because they were dissatisfied with the space available at the high school for instructional services. The Team reconvened shortly thereafter and proposed an IEP offering a full-year, 24-hour-per-day residential program. The district asked the parents for permission to send referral packets. The parents rejected the IEP and refused permission for referral packets to be sent.

The district requested a hearing on the issue of placement and moved for an interim ruling designating the student’s “stay put” placement pending the resolution of the placement dispute. The district took the position that, by initially accepting the placement at the high school and accepting the transition plan, the parents agreed to the change of placement proposed in the IEP, despite the parents’ subsequent clarification of their actions and rejection of the IEP and placement.

The Hearing Officer ruled that the student’s “stay put” placement was the IEP and program previously agreed to by the parents, providing for the 1:1 services to be provided 3 hours per day at home and 4 hours per day in school. In so ruling, the Hearing Officer observed that acceptance of the school’s arguments would elevate “form over substance,” since the parents made clear that they did not intend to accept the classroom placement offered in the IEP nor did they intend to alter the manner in which the services were being provided. Of importance to the Hearing Officer was that the proposed classroom did not exist and the student had not attended it, so having the student return to the services specified in his previous IEP would not be disruptive for him. The Hearing Officer regarded as inconsequential the fact that the parents did not use the placement form to explain their decisions and register their rejection, but did so by e-mail instead. Finally, the Hearing Officer found that the subsequent IEPs were designed to be temporary “bridge services” and not true placements, so they were not relevant to the “stay put” determination.

The lesson to be learned from this decision, for both parents and school districts, is that relying on technical errors and minor deviations from normal practice is unlikely to enable a party to prevail. The emphasis should be on the substance of what is intended so that the ultimate outcome will address the needs of the student, rather than reward the winner of a procedural contest (particularly when the loser of such a contest would be an unsophisticated parent who lacks the advantage of having been trained in the use of the special education regulations and forms). Here, the import of the parents’ responses was clear enough and was consistent across time. The hearing officer correctly rejected the district’s hypertechnical arguments and ensured that the student received the important protection that “stay put” provides.

Form Over Substance in Determining Stay Put? You Be the Judge

In In Re: Hampden-Wilbraham Regional School District, BSEA #12-1091, 17 MSER 335(11/08/11), the parents filed for a hearing seeking placement at the Curtis Blake School for their son, a fifth-grader with a language-based learning disability. Prior to fourth grade (2010-2011 school year), the parents had filed a similar hearing request but ended up accepting the district’s IEP. That IEP specified an inclusion program with pullouts. The parents stated that a principal reason for their acceptance of the fourth-grade program was that the classroom teacher formerly had taught at Curtis Blake and was experienced in teaching children with language-based learning disabilities. This teacher was responsible for all of the student’s Grid B services as well as a 1:1 tutorial for reading and language arts. It was undisputed that the student made effective progress during fourth grade. It does not appear that the fourth-grade IEP specified a teacher who was trained by Curtis Blake.

For fifth grade (2011-2012 school year), the student was assigned to a regular education classroom taught by two master’s-level teachers, both of whom had experience teaching students with language-based learning disabilities. Arguably, the services offered in the fourth and fifth grade IEPs were comparable. The parents rejected the IEP proposed for fifth grade, seeking placement at Curtis Blake. The stay put placement offered by the district for the student was the 2010-2011 IEP, except the services were provided by the fifth-grade staff and not the former Curtis Blake teacher.

The parents filed an interim motion for a determination of stay put, taking the position that the implementation of the former fourth-grade services in the fifth-grade classroom failed to satisfy the stay put requirement. The parents contended that the district had created a “unique” placement for fourth grade by providing a former Curtis Blake teacher and that the district had represented that the placement was unique in its response to the fourth-grade hearing request The parents contended further that the district offered this particular teacher to induce the parents to forgo the earlier hearing, which the parents did based on the district’s fourth-grade offering. In addition, the parents reported that the hearing officer in the former case told them during a conference call that they would have a difficult time prevailing at a hearing for placement at Curtis Blake where there was a former Curtis Blake teacher teaching the challenged classroom.

For all of these reasons, the parents argued that stay put principles required a former Curtis Blake teacher, or her equivalent in training and experience, as the fifth- grade teacher pending the resolution of the dispute. In denying the parents’ motion, the hearing officer stated the well-settled principle that a district enjoys wide latitude in choosing its staff, “except in the unusual circumstance where the child’s needs are so uncommon or severe that higher than normal qualifications are required or where the child’s right to FAPE is implicated.” 17 MSER at 337 (citing prior cases). Finding that “the Parents have presented no factual basis to conclude that either circumstance exists here,” the hearing officer declined to “second-guess the School’s choice to provide Student with different classroom teachers for fifth grade than it did for fourth grade.” Id.In so ruling, the hearing officer gave no weight to the district’s pleadings in the prior case or to the comment of the prior hearing officer during a conference call.

As the BSEA has explained, the central inquiry in a stay-put dispute “is the actual educational impact upon the student as a result of any change of services or setting.” Uxbridge School District, BSEA #11-1115, 16 MSER 334, 336 n.15 (2010); see also, e.g., Malden Public Schools, BSEA #04-3258, 10 MSER 438, 443 (2004)(framing the issue as whether the disputed service was a “fundamental feature” that was “centrally important” to the student’s program). In this case, the hearing officer based her decision on the parents’ failure to show “that a Curtis Blake trained teacher is an essential element of the Student’s program” or “that Student’s last agreed IEP could only be implemented by such a teacher.” 17 MSER at 337. Particularly where a specific program feature is not spelled out in the last agreed-upon IEP, parents and their advocates must be prepared to make such a showing. In this case, while the parents might well have had an uphill battle in any event given the district’s discretion in assigning staff, it does not appear that they offered much if any evidence as to the importance of the Curtis Blake-trained teacher to the student’s program. In those circumstances, it is not surprising that the hearing officer reached the result she did.

State Department of Children and Families Must Observe the Requirement of Stay Put, As Hearing Officer Once Again Looks beyond the Form to the Substance

In Re: Lowell Public Schools and Massachusetts Department of Children and Families, BSEA #12-1912, 17 MSER 322 (10/19/11), involved a twelve-year-old student in the custody of DCF who had multiple disabilities, including retinopathy of prematurity, cerebral palsy, microcephaly and hypertonia resulting from a premature birth. As a result of prior litigation, the parent, the district and DCF had entered into a settlement agreement providing for residential placement at the Perkins School for the Blind for one school year, 2008-2009. The agreement specified that the district would be responsible for the day portion of the program, with DCF responsible for the residential portion. Following the end of the 2008-2009 school year, the student continued in the Perkins placement for two additional years, with the district and DCF continuing to share the cost under the terms set forth in the 2008-2009 agreement. For all three years, the IEPs referenced this cost-sharing arrangement.

At the end of the third year, DCF announced at a Team meeting that it would no longer fund the residential portion of the program. The IEP resulting from that meeting, for the 2011-2012 school year, specified placement in a day program at Perkins and did not mention a residential placement. At the time of the hearing, the student was attending Perkins as a day student and living at home with her mother. The student’s guardian ad litem rejected the IEP in part because it no longer referenced a residential placement. In September 2011, the student filed a hearing request, seeking joinder of DCF and a stay put order requiring DCF to fund the student’s residential services at Perkins.

At the outset, the hearing officer decided that he had the authority to consider the terms of the settlement agreement, noting that every federal court that has considered the issue has agreed that hearing officers had such authority. He then decided that DCF was subject to IDEA’s stay put requirements. As he stated, “When DCF and Lowell jointly funded Student’s placement at Perkins through the Settlement Agreement initially and then through IEPs for two subsequent years, DCF became inextricably involved with Student’s special education and provided special education services to Student.” 17 MSER at 325.

DCF attempted to argue that it was not responsible to fund the Student’s residential services because the last agreed-upon IEP was for a day program. The hearing officer found, however, that that IEP was replete with references to residential services and that, “when read in its entirety and within the context of the history of this dispute, [it] clearly contemplates that Student would receive her education within an integrated residential education program jointly funded by Lowell and DCF, making this her stay put placement.” 17 MSER at 325. The fact that “the residential and day portions of Student’s placement at Perkins do not function independently of each other,” but rather “interrelate and support each other,” was central to the hearing officer’s conclusion.

The hearing officer then found that DCF’s discretion in offering, modifying and terminating its services, and the settlement agreement’s acknowledgment that DCF might do so, did not override the student’s right to stay put. The hearing officer found that DCF did not enjoy unfettered discretion in choosing its providers where, as here, “DCF’s obligations under stay-put can be fulfilled in only one way,” i.e., by continuation of the residential services at Perkins. 17 MSER at 327. Turning to the settlement agreement, the hearing officer declined to imply any waiver of the student’s right to stay-put from the acknowledgment of DCF’s discretion. As he stated, any waiver of stay put would need to be “clear and specific,” which was not true of the contractual language in this case. 17 MSER at 328.

This is an important decision affirming the jurisdiction of hearing officers to require state human services agencies to adhere to the requirements of IDEA in general, and the requirement of stay put in particular. The decision also provides useful guidance regarding the BSEA’s ability to interpret and enforce the terms of settlement agreements.

Hearing Officer Determines Stay Put and Orders Reimbursement, Where Last Agreed-Upon Program No Longer Exists

In Re: Agawam Public Schools and Pilar, BSEA #12-1714, 17 MSER 319 (10/07/11), concerned a fifteen-year-old student with multiple mental health diagnoses and a history of related hospitalizations and residential therapeutic educational placements. For the 2010-2011 school year, she attended the Bromley Brook School in Vermont, a year-round therapeutic residential school for students with needs such as hers. Bromley Brook was not approved by DESE. An accepted IEP for the period March 8, 2011-March 11, 2012 provided for a year-round residential therapeutic educational placement. During the previous year, the district had reimbursed the parents for tuition at Bromley Brook and made direct payments to the school as well. In late March 2011, the parents learned and notified the district that Bromley Brook would be closing on July 1, 2011.

A Team meeting was held on May 18, 2011. Packets were sent to seven residential therapeutic schools. In mid-June, the parents applied to Talisman Academy, a North Carolina school that was similar to Bromley Brook. It was not approved as a special education program either in Massachusetts or in North Carolina. After appropriate notice to the district, the parents placed the student there, beginning July 2, 1011. As of that date, the student had not been accepted by any one of the schools to which packets had been sent, nor had the district proposed an IEP or placement. When the Team reconvened on July 25, 2011, the district proposed sending packets to some additional residential programs. As of the date of the hearing on the motion for stay put, the Team had not reconvened and no IEP or placement had been offered.

The parents filed a motion for stay put at Talisman Academy, independent of any underlying IDEA dispute. The district defended by alleging that the parents had failed to cooperate with the admissions process at various schools; that Talisman was not approved; and that stay put does not apply when the student’s program became unavailable for reasons that were not the result of any school district action. The hearing officer rejected each of these arguments.

The hearing officer began by articulating the established principle that, when a student’s last agreed-upon placement is no longer available, the district must locate a “comparable” placement. The parties agreed that the educational services and setting at Talisman were comparable to those previously available at Bromley Brook, and the hearing officer so found.

The hearing officer rejected the district’s allegations of lack of cooperation by the parents. She stated, in no uncertain terms, that such considerations are irrelevant to the stay put analysis. As she explained, “’Stay put’ is not an equitable remedy. It is a procedural guarantee.” 17 MSER at 321.

In determining what constitutes a comparable placement for “stay put” purposes the Hearing Officer does not consider the motivations or degree of cooperation between the parties. Neither does she consider the fiscal, programmatic or staff resources available to them, or even the hardship that might result to the adult parties from the “stay put” placement. The sole measure is comparability.

Id. If the district “sidesteps its statutory responsibility,” and the parents step into the district’s shoes by providing a comparable placement, then “public funding follows the student in the form of automatic reimbursement of parent expenses.” Id. Equitable considerations do not enter into the analysis.

The hearing officer also dismissed the district’s argument based on Talisman’s unapproved status. She concluded that lack of state approval “is not an absolute bar to reimbursement . . . when, as here, that [unapproved] placement is both necessary and responsive to the Student’s demonstrated learning needs.” 17 MSER at 321 (citingFlorence County Four v. Carter, 510 U.S. 7 (1993), and Matthew J. v. Department of Education, 989 F. Supp. 380 (D. Mass. 1998)). She stated that lack of approval “cannot be used to effectively deny a [FAPE] to an eligible student,” and that therefore, when “the duty to implement ‘stay put’ and the duty to locate an ‘approved’ placement conflict, the latter must yield to the district’s fundamental obligation to ensure FAPE.” Id.

Lastly, the hearing officer rejected the district’s argument that stay put was inapplicable because the district had not caused the Bromley Brook placement to become unavailable. The hearing officer held that stay put applies “whenever a student’s placement becomes unavailable,” regardless of the reason. 17 MSER at 322 (emphasis in original).

We think that the hearing officer’s analysis was correct on all counts. This opinion offers decisive reminders that a district’s dilatory efforts to avoid a stay put obligation will be not be rewarded; that a district has an affirmative obligation to locate and offer a placement comparable to the last agreed-upon one; and that if the district fails to do so, it must be prepared to reimburse the parent who has provided a comparable placement.

A Garden Variety Stay Put Decision

In In Re: Taunton Public Schools and Solomon, BSEA #12-1212, 17 MSER 337(11/17/11),the district requested a determination of the stay put placement for a student who had attended a program at the South Coast Collaborative under an IEP that ran from October 2010 to October 2011. Near the end of the IEP period, by agreement of the parties, the student underwent an extended evaluation in a substantially separate classroom within the district. The Team convened in October 2011 and offered a substantially separate program in an elementary school within the district. The parents rejected the proposed placement and requested ABA services through the APEX Agency. The hearing officer ordered stay put in the substantially separate program at the South Coast Collaborative, finding no intervening agreement on placement and no basis for an emergency placement.

Compared to the previous four decisions, this one was relatively easy to decide and atypical of the complex fact situations usually presented to the hearing officers. In all five decisions, the hearing officers strove to adhere to the letter of the law, recognizing the important procedural protection that stay put provides.

Three Decisions Involving Disputes About Assignment of Responsibility to Districts by DESE

In In Re: Walpole Public Schools and Heidi, BSEA #11-4328, 17 MSER 331 (11/01/11), Taunton and Westwood moved to dismiss Walpole’s appeal of DESE’s assignment of responsibility for a student with significant special education needs who was attending a residential program at the Kolburne School in New Marlborough, Massachusetts. The student’s co-guardians lived in Walpole and Westwood, Massachusetts. In October 2010, the Probate Court removed the co-guardians and appointed Daniel Smith of Taunton as sole guardian. On November 30, 2010, DESE assigned programmatic responsibility to Taunton. DESE then applied the move-in law (MGL c. 71B, §5), designating Walpole and Westwood as the former communities of residence (FCR) and Taunton as the new community of residence (NCR) effective October 25, 2010, the date of the change in guardian. Thus, fiscal responsibility for the student would remain with Walpole and Westwood through June 30, 2011 and shift to Taunton as of July 1, 2011.

In January 2011, Walpole appealed DESE’s LEA assignment to the BSEA. Walpole contended that the hearing officer should not have applied the move-in law and that Taunton should have been assigned both programmatic and fiscal responsibility as of October 25, 2010, the date of the appointment of the new guardian. Walpole argued that the move-in-law does not apply where there has been no physical change of residence by parents or a guardian.

Westwood then filed a motion to dismiss Walpole’s appeal, contending the move-in-law should apply and that DESE’s LEA assignment was correct. Westwood argued in the alternative that if the hearing officer decided that the move-in law did not apply, Westwood was in the same position as Walpole, i.e., if Walpole was not fiscally responsible from October 25, 2011 to June 30, 2011, then neither was Westwood. Walpole opposed Westwood’s motion to dismiss.

Not surprisingly, Taunton filed a response in partial support and partial opposition to Westwood’s motion to dismiss, agreeing that the move-in law should apply and that, therefore, Westwood and Walpole should remain fiscally responsible until June 30, 2011. In partial opposition, however, Taunton also contended that DESE incorrectly determined that Taunton should be programmatically and fiscally responsible after June 30, 2011 based on an erroneous determination that Mr. Smith was appointed the student’s guardian in his individual capacity rather than in his capacity as Executive Director of the Advocacy Resource Center of Fall River ARC and the New Bedford ARC.

After many additional legal filings, meetings and discussions, the hearing officer affirmed the assignment by DESE. Finding no case specifically on point, the hearing officer relied on decisions from an analogous dispute, Cohasset School Committee v.Massachusetts Bureau of Special Education Appeals, Plymouth Superior Court Civil Action No. 06-00087(2007), and Cohasset Public Schools, BSEA #05-3397, 12 MSER 8 (2005), to decide that a physical move from one community to another was not necessary to invoke the requirements of the move-in law and that DESE’s deeming of the student’s residence to be that of the gaurdian was appropriate. The hearing officer also found that in this particular case, such approach furthered the purpose of the move-in law, i.e., it avoided burdening a new community of residence with the unanticipated costs of a new student in a private program by holding the former community of residence, which had already budgeted for such costs, responsible for some period of time after the student moved.

In Re: Lincoln Sudbury Public School, and Lincoln-Sudbury Regional School District, Department of Elementary and Secondary Education and Lexington Public Schools, BSEA #11-9766, 17 MSER 370 (08/29/11, decided on the written submissions of the parties), is another case in which the hearing officer affirmed the assignment of responsibility by DESE. Here, the student had been unilaterally placed since June 28, 2010 as a residential student at the Dr. Franklin Perkins School in Lancaster, Massachusetts. For the five years preceding his placement, he lived virtually full time in Lincoln with his mother, who had been awarded sole physical custody by the Probate Court. During that time, his father lived in Lexington. While at Dr. Franklin Perkins, the student spent equal time with each parent, in Lincoln and Lexington respectively, on weekends and overnight visits. At all relevant times prior to the student’s residential placement, he received his services from Lincoln-Sudbury. He had never received any services from Lexington.

In affirming DESE’s assignment of responsibility to Lincoln, the hearing officer relied on George H. and Irene L. Walker v. Town of Franklin, 416 Mass. 291 (1993), to the effect that “the place where a student lives, where he dwells and which is the center of his social life” constitutes his residence for purposes of MGL c. 71B, §3, and c. 76, §5. 17 MSER at 372. The hearing officer found that, before entering Perkins, the student had spent most of his time with his mother in Lincoln, and that even after he entered Perkins and began spending equal time with both parents, his mother retained sole physical custody. The hearing officer also viewed as significant the fact that the student had attended public school in Lincoln until his unilateral placement, and that his last accepted IEP called for an in-district placement in Lincoln.

The hearing officer rebuffed Lexington’s attempt to use 603 CMR 28.10(2)(a)(2) to hold Lexington jointly responsible for the out-of-district placement. As the hearing officer stated, since Lincoln’s proposed IEP did not call for an out-of-district placement, that regulation was inapplicable.

In re: Westborough Public Schools, DESE, and Middleborough Public Schools, BSEA #12,0437, 12-0551, 11-7865, 17 MSER 316 (09/27/11), concerned a thirteen-year-old student in a private day program. His parents lived in different communities but the student lived almost exclusively with his mother in Westborough, pursuant to an order of the Probate Court designating the mother as the “primary parent” and stating that her residence would be considered the child’s home. The student stayed with his father in Middleborough on alternating weekends.

The hearing officer affirmed the DESE’s assignment of responsibility to Westborough. First, the hearing officer found that the court order, though not determinative, carried “significant weight,” particularly where there was no showing that the actual living arrangements were incompatible with it. 17 MSER at 318. Second, the hearing officer found that the center of the student’s domestic life was in Westborough, where he spent 85% of his time overall. The hearing officer also pointed out that “100% of [the student’s] school-related preparation and transportation occurs in Westborough,” and concluded that it was permissible for the DESE to accord less weight to non-school-related time. Id. Lastly, the hearing officer rejected Westborough’s argument that the presence of a parent training component in the IEP, which required delivery of in-home services in Middleborough, made the student a resident of Middleborough. The hearing officer concluded that “the mere existence of an out-of-school training component in an IEP does not drive determination of student residence.” Id.

All three of these decisions had a common theme: districts jockeying to try to avoid financial responsibility. In two of the cases, the hearing officers arrived at decisions which place responsibility on the district with which the student had the greatest connection, i.e., the district that was the “center of the student’s social life.” In the third, the hearing officer made creative use of the “move-in” statute to place responsibility in the short term on the districts that had budgeted for such responsibility already, and, in the longer term, on the new district which would at least have time to plan for the cost of the new student’s program. Thus, there were no big surprises or unexpected new financial obligations in any of the three cases.

Three Decisions Regarding Disputes Over Placement

In In Re: Andover Public Schools, BSEA #12-0430, 17 MSER 338 (12/02/11), the hearing officer ruled in favor of a parent who sought placement at the Landmark School for her fourteen-year-old daughter. The parent also sought compensatory services for services specified in the student’s IEP that were either not provided or provided poorly. The student, who had “solid average intelligence,” was diagnosed with a language-based learning disability that adversely affected her reading comprehension, written expression, and mathematics reasoning and concepts. At the time of the hearing, the student was in ninth grade.

The student had enrolled in Andover on January 3, 2011 (midway through eighth grade) from the Newton Country Day School. The hearing officer found that, although the district was aware that the student had difficulties in various areas including math and reading, the eighth-grade IEP failed to meet the student’s needs in math, and the district failed fully to implement the reading services specified in the IEP.

The IEP failed to address the student’s math needs appropriately because, the hearing officer found, Andover failed to meet its obligation to evaluate the student in a timely manner. Because the district lacked the information that an evaluation would have provided, its IEP lacked the services and modifications that the student required in math. With regard to reading, the district failed to provide the student with the number of reading sessions specified in her IEP due to a scheduling conflict with Spanish. The parent wanted her daughter to receive the number of reading sessions specified in the IEP and to take Spanish, but the district presented the parent with a Hobson’s choice, stating that the reading instruction could only be provided if the student dropped Spanish (thus forcing the parent to choose between Spanish and reading). The parent opted not to withdraw the student from Spanish, and requested that the reading services be provided after school, which the district refused for three months to do. The hearing officer found that the district’s failure to deliver the necessary, agreed-upon reading services violated the student’s right to FAPE. (We note in addition that denying the student access to Spanish would most likely have violated Section 504.)

The district, citing C.G. v. Five Town Community School District, 513 F.3d 279 (2008), attempted to argue that the parent had withdrawn from the collaborative process when she communicated with Landmark in February 2011, indicating that she would like her daughter to attend Landmark for the 2011-2012 school year. The hearing officer rejected this contention, finding that, in light of “the voluminous communication between Parent and Andover during the period from January through June 2011, Andover’s allegation that Parent disengaged from the collaborative process is without merit.” 17 MSER at 352. On the evidence as reported, this conclusion was more than appropriate. Since the issuance of the Five Town decision, districts have been quick to allege lack of parental cooperation, often with very little basis. As the Andover decision illustrates, the mere fact that the parent and district may have a difference of opinion, or that the parent may start searching for alternatives, does not constitute unreasonable behavior within the meaning of Five Town.

With regard to the student’s ninth grade (2011-2012 school year) program, Andover has proposed “block scheduling,” which was Andover High School’s standard practice for special education students. Under that schedule, which Andover stated was geared to helping special education students pass MCAS, the student in this case would have received only one semester of math instruction and one semester of English language arts instruction during her freshman year (both during the spring semester). An independent neuropsychological evaluator testified that, due to the student’s language-based needs and her difficulties with consolidating and retaining learned material, she required year-round instruction in both subjects. Because the “block scheduled” program left the student without instruction in math or English for months at a time, the neuropsychologist testified that it was inappropriate for the student.

Andover was apparently unable to depart from the block scheduled model within the high school, and unwilling to consider out-of-district placement. The district put forth a few proposals to modify the block schedule, but the hearing officer found that these would have resulted in a more restrictive program (by depriving the student of electives) and would have forced the student to carry a heavier course load than any of her peers, disabled or non-disabled, thereby negating any possible benefits of the block system. The hearing officer further found that the student required language-based instruction, at a slow pace, across all areas on the curriculum. Such a program did not exist within Andover High School.

The hearing officer concluded that:

While block scheduling may be a widely accepted methodology, and while it may be implemented by well-intended, highly qualified teachers in Andover, it does not offer Student a FAPE at this point in her education, and any attempt to modify Andover’s block schedule would result in creating a highly restrictive program, in contravention of the requirement of the law. Parent argued that Andover’s block schedule was offered because that is what is available and does not appropriately respond to Student’s needs, denying her a FAPE. As such, she argues that she is justified in seeking out-of-district placement for Student. Taking into account Student’s current needs and in light of the implications of attempting to address Student’s needs within the block schedule model as discussed above, as well as the fact that Andover does not offer a language-based program outside block schedule in high school, Parent’s request is justified.

17 MSER at 355. The hearing officer therefore ordered the district to place the student at Landmark.

We applaud this result. Too often, districts try to shoehorn special education students into “what is available,” rather than designing the student’s program to meet his or her unique needs. Here, the district’s unwillingness to “think outside the box” (or, one might say, “outside the block”) resulted, as it should, in an order for out-of-district placement. A phrase that the hearing officer quoted from one of the parent’s letters to the district – “’schedules should not prevail over services needed,’” 17 MSER at 342 – underscores the lesson to be drawn from this case.

In Re: Boston Public Schools, BSEA #12-1298, 17 MSER 356 (12/13/11), concerned a thirteen-year-old girl with a complex profile, including diagnoses of major depressive disorder, anxiety disorder, school phobia, chronic health problems, and learning issues. The parent filed a hearing request seeking an order for an unspecified private therapeutic day placement. At the time of the hearing, the student had been at home without a placement for approximately eight months. Boston was proposing a substantially separate program, described as therapeutic, at its McKinley Middle School. The student had not attended that program, as the parent and the student’s therapist, after visiting it, had concluded that the program would not be appropriate for the student, “primarily because of the presence of acting-out peers within the school building.” 17 MSER at 359.

The hearing officer found that the district’s proposed program would not meet the student’s needs. It was undisputed that the student “is an exceptionally fragile, vulnerable child”; that she had “absolutely no history of oppositional, disruptive, defiant, or acting-out behavior”; and that she “finds such behavior in other children to be threatening.” 17 MSER at 360. As the hearing officer described it, “acting out” on the part of other children causes this student to “‘act[] in,’ becoming highly anxious, physically ill, and unable to function in a school setting.” Id. at 361. There was unrefuted evidence that “the behavior of peers, whether inside or outside of the classroom, would be unavoidable and would likely prevent Student from even attending [the McKinley] school on a regular basis, let alone making effective progress.” Id. Although the hearing officer found that the McKinley program was well-staffed and well-designed, she concluded that the Student, in her “current state of vulnerability,” would be unable to benefit from what the program might offer. Id. Thus, she concluded that the proposed program was inappropriate. She ordered Boston to send referral packets to therapeutic programs that would provide “a supportive, nurturing, calm environment,” with peers who display “little or no disruptive, aggressive, or acting-out behavior.” Id.

This was a “no brainer,” as there was a total mismatch between the needs of the fragile, vulnerable student and the McKinley School program, with its boisterous, acting-out peers. Why Boston did not offer a more appropriate and defensible program, even if it had to look out-of-district, is baffling. It is troubling that, even though the parent ultimately prevailed, Boston’s insistence on the McKinley program compelled the parent (who was presumably unable to make a unilateral placement) to pursue the hearing process to its conclusion. Boston thereby deprived the student of months’ worth of the therapeutic program that she should have had, for which no compensation was ordered.

In Re: Taunton Public Schools and Solomon, BSEA #12-1212, 17 MSER 362 (12/14/11), involved an eight-year-old student with diagnosed disabilities of intellectual impairment, communication impairment, and autism spectrum disorder. Overall, the student functioned at a 12- to 24-month cognitive communication level. He was not verbal but had some emerging communication skills using gestures, eye gaze and pulling. The district sought an order for placement in a substantially separate classroom operated by the South Coast Collaborative. The pro se parents did not produce any evidence at the hearing. In fact, only the father appeared and he left during the direct examination of the district’s first witness. In the parents’ absence, the hearing officer viewed the school’s proffered evidence with “heightened scrutiny.” 17 MSER at 363.

Ultimately, the hearing officer found the IEP proposed by the district to be appropriate. She concluded that the IEP met all of the evaluators’ recommendations. She credited the testimony of the district’s witnesses, finding them to be highly professional, thorough, and thoughtful. Although she was not required to consider the parents’ claims due to the parents’ abandonment of the hearing process, the hearing officer nonetheless went on to do so. She found no evidentiary support for any of those claims.

This was a sad case, where the parents appear to have given up on both the district and the appeal process in trying to secure appropriate services for their son. Before he left the hearing, the father indicated his intent to home-school his son. It is unfortunate when feelings between parents and district run so high that the parents decide to withdraw their child from special education altogether, possibly to the detriment of the child. Districts and parents should try their hardest to prevent this type of breakdown in their relationship.


This review illustrates the practical and common sense approach of the hearing officers in their efforts, when presented with complex fact situations, to weigh the evidence and reach conclusions that are legally correct and in the best interests of the student. These cases not only provide helpful guidance to participants in BSEA proceedings, but afford valuable insight into the relationship between parents and school districts, and the BSEA’s role in defining the nature and limits of that relationship.

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