Overview

Commentary on Massachusetts Special Education Decisions: 4th Quarter, 2012, by Joseph B. Green and Eileen M. Hagerty:

June 05, 2013

Introduction

The fourth quarter of 2012 produced fewer BSEA decisions than usual: there were only seven reported decisions and rulings. In this Commentary, we discuss a ruling on a motion for stay-put (Quincy Public Schools); three decisions with regard to program and placement (Quincy Public Schools, Stoneham Public Schools, and Hudson Public Schools); a ruling allowing joinder of the Massachusetts Department of Developmental Services (Nauset Regional School District); and a ruling that dismissed a parent’s tort claims for lack of subject matter jurisdiction (Springfield Public Schools).

Of the placement disputes, only one (Stoneham) concerned a clash between the parents’ desire for a private out-of-district program and the district’s insistence on an in-district placement. In that case, the hearing officer ordered modifications to the student’s IEP but declined to order placement in a private program. In the other two placement cases (Quincy and Hudson), the parents and district agreed that the student required an out-of-district placement, but disagreed as to which one. The hearing officer in Quincy found that neither the district’s nor the parents’ choice was appropriate, and ordered the district to locate or create an appropriate program for the student. In Hudson, the parent lost due to lack of evidence to support her position.

 Can parents obtain living expenses due to distance, in stay-put context or otherwise?

The Quincy Public Schools case, BSEA #1302133, is the source of two opinions this quarter. In the first, 18 MSER 339 (October 10, 2012, Crane), the hearing officer was required to determine what the student’s stay-put placement was, pursuant to 20 USC §1415(j) and 34 C.F.R. §300.518, after her residential program was terminated by the private school she attended, the Clarke School for Hearing and Speech in Northampton, Massachusetts. In the second opinion, 18 MSER 352 (November 21, 2012, Crane) (discussed in the next comment), the hearing officer considered the merits of the placement dispute between the parents, who sought a day placement at Clarke plus payment of their living expenses, and the district, which proposed placement at a local collaborative.

The student in Quincy was a 13-year-old sixth-grader with a significant bilateral hearing impairment. She also suffered from expressive and receptive language deficits and language-based learning disabilities. The parties agreed that she required instruction in a small, specialized language-based classroom, staffed by professionals who were trained in educating students with learning disabilities and serious hearing loss.

During the 2011-2012 school year, the student had attended Clarke as a residential student, pursuant to an agreement that settled a previous dispute over her placement. The parties agreed that the only reason for the residential placement was the distance between Northampton and the student’s home in Quincy.

Clarke terminated its residential program as of the end of the 2011-2012 school year, offering only a day program for 2012-2013. The parents filed a hearing request seeking placement in Clarke’s day program for the 2012-2013 school year, plus payment of the parents’ living expenses in Northampton in order to enable the student to attend that program. The parents withdrew their hearing request after the parties agreed that the student could remain at Clarke as a residential student, contingent on Quincy’s obtaining sole source approval of that placement. When Clarke refused to complete a sole source application on the grounds that it did not have a residential program, that agreement fell apart. Quincy then proposed a day placement at READS Collaborative, which the parents rejected. Quincy filed a hearing request seeking a determination that its proposed 2012-2013 IEP and placement were appropriate.

The parents filed a motion for stay-put, seeking to require the district to fund both the Clarke day placement and their living expenses pending the outcome of the hearing. Quincy took the position that READS, which the student had never attended, should be considered her stay-put placement.

As the hearing officer observed, because the student’s last agreed-upon placement was a residential one, she had a stay-put right to continue attending a residential program. A dilemma arose because her previous residential placement no longer existed. As the hearing officer stated, when it is not possible for a student to continue in the same placement (due, for instance, to the student’s aging out of the school or moving to another district), case law makes clear that the district must provide the student with a “‘comparable’ educational program” during the stay-put period. 18 MSER at 340 & n.12 (citing cases).

The hearing officer first considered whether he should order Quincy to locate or create a residential program for the student to attend on a stay-put basis. He concluded that this solution (which neither party had requested) would be impractical, due to the short amount of time remaining before hearing (less than a month) and the parties’ lack of interest. His allusion to this option provides a useful reminder, however, that “locate or create” is available in the stay-put context, and might be obtained in a case where a party requests it.

After determining that the fundamental purpose of stay-put (preservation of the status quo) could not be satisfied by another residential placement, the hearing officer considered the options that the parties sought: the Clarke day program plus living expenses (parents) and READS (Quincy). The hearing officer found that the Clarke day program was the only option that would provide the student with continuity in her educational program. The hearing officer cautioned that this might not be true in many stay-put disputes involving residential placements, when the child has been residentially placed because his or her special needs require the all-around support of a residential setting. Here, however, because the residential placement was due only to distance, and because the Clarke day program was the same in 2012-2013 as in the preceding year, the hearing officer found that the student needed to remain at Clarke, in the day program, in order to receive a stay-put placement that was comparable to her previous placement. (From the parents’ point of view, it also helped that the district, as a result of an independent evaluation report that the parents had produced on the day of the stay-put motion hearing, had begun to express doubts about READS’ appropriateness for the student.)

The thorniest issue that the hearing officer faced was whether to order the district to fund the parents’ living expenses in Northampton pending the outcome of the hearing. As the hearing officer described, “this kind of relief is substantially different than the typical residential placement.” 18 MSER at 341. He also pointed out that the case law on this issue is “not well-developed,” as the BSEA had ordered payment of parents’ living expenses only once before, in Provincetown Public Schools, BSEA #04-3100 & 05-0340, 10 MSER 493 (2004). Id. He further stated that this type of relief would require an evidentiary hearing and full briefing, neither of which had occurred (although it would seem that the hearing officer could have ordered them). Based on these considerations, the hearing officer denied the portion of the parents’ stay-put motion that requested payment of living expenses. It is clear both from his ruling on the stay-put motion (payment of parents’ living expenses “cannot now be ordered,” 18 MSER at 341 (emphasis added)) and his decision following the hearing (discussed below) that this denial was without prejudice.

In determining the stay-put motion, the hearing officer was clearly influenced by the parents’ representation that if the BSEA did not order payment of their living expenses, they could and would make other arrangements so that the student could continue to attend Clarke during the stay-put period. The hearing officer concluded that “because of Parents’ apparent ability and willingness to support their daughter’s attendance at Clarke as a day student, Clarke’s day program may be considered to be Student’s stay-put placement.” 18 MSER at 341. Many parents would not have been financially able to set up a separate living situation in Northampton, however. Had the parents not had the means to do so, it would seem that the hearing officer and parties would have had to grapple with precisely the issue that the opinion avoided: whether a district can be required to fund parents’ living expenses in order to ensure a student’s access to her stay-put placement. Otherwise, it appears that either the Clarke day program would not have been ordered, creating an unfair result in light of the hearing officer’s finding that Clarke’s day program was the only comparable placement for the student, or if ordered without living expenses, the relief would have constituted no relief at all, as the student would have had no access to it.

One might assume that, even though the hearing officer declined to reach the issue of the district’s obligation to fund the parents’ living expenses on the motion for stay-put, the parents would at least have been able to seek reimbursement of those expenses at the hearing, when all evidence could be heard and the issue could be fully briefed. Practitioners should note, however, that although the hearing officer allowed the parents at the hearing to seek prospective funding of their living expenses, he refused to allow them to seek retroactive reimbursement because he found that they had not raised the issue clearly. He viewed retroactive reimbursement as a claim “separate and distinct” from the prospective one. Quincy Public Schools, BSEA #1302133, 18 MSER 352, 353 n.2 (decision after hearing). Because retroactive reimbursement “had not been raised as an issue in either Quincy’s hearing request or Parents’ response and because Quincy had not been otherwise put on notice that this would be an issue at hearing,” the parents were not permitted to raise it there. Id. The hearing officer viewed the claim for prospective funding of living expenses as not having been explicitly stated in the hearing request or response either, but he permitted the prospective claim to proceed because, inter alia, “this relief was implicitly included within Parents’ request that the BSEA order Quincy to place Student at the Clarke School since the parties understood that the only way that this could occur would be for Quincy to pay prospectively for Parents’ living expenses in the Northampton area.” Id.

It would seem that the ruling on the retroactive expense claim could have come out the other way. There had been much discussion of the living-expense issue on the motion for stay-put, and the hearing officer’s disposition of that motion appeared to defer the issue to the full hearing context. Given that a claim for prospective funding of living expenses was “implicitly included” in the parents’ request for prospective placement at Clarke, was not a claim for retroactive reimbursement of expenses just as implicitly (or even explicitly) raised via their stay-put motion? It would seem so. Nevertheless, the hearing officer concluded that the issue had not been raised clearly enough to be considered in the hearing on the district’s hearing request.

In the decision following the hearing (discussed in the next comment), the hearing officer denied the parents’ claim for prospective payment of living expenses on the grounds of their failure to prove either that the Clarke day program was appropriate for the student or that she would need to attend another program that was not within commuting distance of their home. He therefore did not need to determine the issues that he had flagged on the stay-put motion regarding the BSEA’s power to order payment of living expenses and the circumstances under which it should do so.

The hearing officer did indicate in his hearing decision that the parents might at a later date be able to obtain reimbursement for all or part of their living expenses during the entire stay-put period. 18 MSER at 363 n.36. Presumably this would occur in a separate proceeding. Thus, although the parents were not permitted to seek retroactive reimbursement at the hearing, neither were their claims for such relief held to be barred. The hearing officer did not engage in an extended discussion because the issue was not squarely before him, but his apparent willingness to entertain the retroactive reimbursement claim at a later date may have been related to the fact that the parents were not the moving party in this case. Given that neither the BSEA Rules nor the Standard Adjudicatory Rules of Practice and Procedure, 801 CMR 1.01 et seq., provide for any kind of a counterclaim procedure (let alone compulsory counterclaims), the parents had no obligation and no clear vehicle to raise the claim for retroactive reimbursement during the proceeding initiated by Quincy. Although the hearing officer allowed the parents to seek affirmative relief (prospective placement in Clarke’s day program and prospective funding of living expenses) as part of that proceeding, he did not require that the parents raise all of their claims in that proceeding. In effect, he treated the parents’ response to the district’s hearing request as a counterclaim, but as a permissive rather than a compulsory one.

We think that this type of situation would best be addressed by inclusion of a counterclaim procedure at the next amendment of the BSEA rules. In the meantime, practitioners should remember: when in doubt, spell all issues out! A party wanting to make sure that it will be allowed to raise all of its issues at hearing should, if it is the moving party, check to make sure that all of the issues are included in the hearing request, and should follow BSEA Rule I(G)’s amendment procedure if they are not. A non-moving party wanting to seek affirmative relief should either check to make sure that all of its issues are included in its response and that the hearing officer will allow those issues to be raised at hearing, or should file its own hearing request (in addition to responding to the opponent’s hearing request) and ask that the two proceedings be consolidated. We recommend the latter course as being less ambiguous and less subject to unpleasant surprise when the issues come to be enumerated at or near the time of the actual hearing.

The development of the law regarding payment of parents’ living expenses will thus need to await either the next filing in the dispute between these parties or a similar case. We think that the reasoning of Provincetown Public Schools, BSEA #04-3100 & 05-0340, 10 MSER 493 (2004) (cited by the hearing officer in both Quincy opinions), remains sound. If the only way that a student can receive FAPE is to attend a day program located too far from her home to allow her to commute, then the district should be required to fund the parents’ and student’s living expenses to allow her to attend that program. See id. at 494-96.

 An impressive expert’s credible testimony fails to support the placement parents seek; district ordered to “locate or create”

An evidentiary hearing on the placement dispute in the Quincy case took place several weeks after decision of the stay-put motion. Quincy Public Schools, BSEA #1302133, 18 MSER 352 (November 21, 2012, Crane). (See the preceding comment for discussion of the factual background, the stay-put ruling (18 MSER 339), and related procedural issues discussed in the hearing decision.) In addition to the issues about the scope of the relief that the parents were allowed to pursue (see preceding comment), several procedural aspects of the case merit mention. First is the burden of proof. The hearing officer placed the burden of proof on the parents, even though the district was the moving party and was seeking approval of a proposed placement that the hearing officer himself had found represented a greater change from the status quo than the placement the parents sought. 18 MSER at 341. This approach appears to differ from that recently employed by another hearing officer, who stated that “[i]n a due process proceeding to determine whether a school district has offered or provided FAPE to an eligible child, the burden of proof is on the party seeking to change the status quo.” Hudson Public Schools, BSEA #12-5963, 18 MSER 345, 350 (June 22, 2012, Berman) (discussed below).

Also of interest in the Quincy case is the hearing officer’s treatment of the parents’ motion to dismiss the district’s hearing request, based on lack of certainty as to what placement the district was proposing. As of the date of the hearing, the placement that the district had proposed in the IEP, READS Collaborative, had not even decided whether it would accept the student. The district tried to have it several ways, asserting that “if the READS Program were not appropriate, it would consider placing Student at the Horace Mann School in Boston, MA.” 18 MSER at 359. The hearing officer denied the motion to dismiss, stating that “the fact that Student had not been accepted at READS did not preclude my determining Student’s special education needs and how they should be addressed.” Id. at 355. That may be so, but to place the burden on parents to prove that a proposed IEP and placement are inappropriate, when it is not even known exactly what program and placement the district is proposing, would seem to place the parents in a doubly unfair position. It also ignores the district’s obligation to propose a specific placement and program location. See 603 CMR 28.05(6), 28.06(2); Boston Public Schools, BSEA #04-2506, 10 MSER 311, 317-18 (July 30, 2004, Crane). By forcing the parents to carry the burden of proof as to not just one but two speculative placements (both of which, in contrast to the parents’ proposed placement, represented marked departures from the status quo), the hearing officer required the parents, in effect, to box with shadows. We think that his denial of the motion to dismiss was erroneous.

Turning to the merits of the case, the hearing officer placed great weight on the testimony of a respected independent evaluator who had followed the student at the parents’ request over a period of years. The hearing officer began his analysis with the independent evaluator’s conclusion (with which both parties agreed) that “Student cannot make effective or meaningful educational progress unless both her hearing deficits and her learning deficits are appropriately and simultaneously addressed in an integrated manner within her educational program.” 18 MSER at 357 (emphasis in original); see also id. n.25. Based on the testimony of the evaluator, whom the hearing officer found to be “credible, objective and persuasive” and to possess a “degree of knowledge of Student and expertise in her twin disabilities” unparalleled by any other witness, id., the hearing officer identified three essential criteria that the Student’s program would need to meet in order to be appropriate. First, the program needed to use “aural/oral” instruction, rather than instruction based on sign language, id.; second, it needed to accommodate the student’s hearing loss effectively, so that she could gain access to her education; and third, all academic instruction needed to take place within a consistent language-based setting.

The hearing officer found that the district’s proposed program at READS failed to meet the first criterion; that there was no specific evidence that it would meet the second; and that, although there was conflicting testimony as to READS’ ability to meet the third criterion, the independent evaluator’s testimony that it could not was more persuasive than the contrary testimony of the READS program director. On the latter point, although the hearing officer found both witnesses to be impressive and credible, several factors caused him to accord greater weight to the independent evaluator’s conclusions. First was the independent evaluator’s depth of knowledge of the student. The READS witness did not and could not testify as to her program’s appropriateness for the student, since she did not know the student well enough. Thus, “she was in no position to rebut the testimony of [the independent evaluator] who has known, evaluated and observed student since she was two years old,” and who testified that the program failed to provide an appropriate language-based setting. 18 MSER at 360; see also id. n.28. Second, the independent evaluator demonstrated a more sophisticated expertise than the READS and district witnesses as to the educational implications of the student’s hearing loss. The probative value of the READS witness’ testimony was undercut by what appears to have been an overly-simplistic view as to what constituted a language-based classroom. Lastly, the hearing officer found the independent evaluator to be more candid, objective, and focused on the needs of the student, whereas the READS witness “testified in a manner that revealed her interest in convincing the listener of the merits of her program.” Id. For all of these reasons, the hearing officer concluded that READS would not meet the student’s needs. (Quincy’s alternate placement, the Horace Mann School, was also inappropriate, as it too was based on sign language.)

In assessing the parents’ proposed placement at Clarke, the hearing officer found that it satisfied the first and second criteria (i.e., it used aural/oral instruction and could accommodate the student’s hearing loss effectively). As to the third criterion, however, there was a complete lack of evidence that Clarke could provide appropriate language-based instruction. The hearing officer concluded that “[n]ot one witness and not one document indicated that Clarke would or could provide language-based instruction that would be consistent and integrated throughout Student’s academic curriculum.” 18 MSER at 360. Indeed, the hearing officer found that the evidence (including certain testimony of the independent evaluator, which the parents were in the unenviable position of having to try to rebut) supported several opposite conclusions: that Clarke had no interest in implementing a language-based program, and that because the student had not received such a program during her previous years at Clarke, she had made no measurable progress in reading, spelling, or math. The hearing officer therefore concluded that the parents had failed to carry their burden of proof that the Clarke day placement, plus living expenses, would meet the student’s needs.

Faced with two inappropriate alternatives, the hearing officer next considered whether either one could be made appropriate through the addition or modification of services. He concluded that neither could be. READS could not be made appropriate because it was a sign language program, and the hearing officer credited the independent evaluator’s testimony that the student was highly likely to fail in such a setting. Clarke could not be made appropriate because of its emphatic lack of interest in developing the language-based program that the student needed. (The hearing officer further noted that, even if Clarke had been willing to do so, the process would likely be “long and challenging.” 18 MSER at 361 n.30.)

Because neither Clarke nor READS was appropriate and neither could be made appropriate, the hearing officer ordered Quincy to “locate or create” an appropriate program for the student. The hearing officer concluded, again based on the independent expert’s testimony, that “there was no reason to believe that an existing language-based, learning disabilities program for hearing students could not be adapted to meet Student’s hearing deficits.” 18 MSER at 362. The hearing officer assumed that the program would be a day placement, as there was no evidence from which to conclude “that all such programs are so far from Quincy as to require residential services.” Id. (For this reason, he found that the parents had not established the right to receive prospective funding of their living expenses as part of the student’s placement.) He advised the parties that Quincy would “likely need to identify an educational program that is already well-suited to address Student’s learning deficits through language-based instruction, and then take such steps as are necessary to ensure that the program will also have the needed expertise and resources to accommodate appropriately Student’s hearing disability.” Id. He rejected the parents’ argument that this had been tried before without success, when the student had been previously placed at Learning Prep School via a settlement agreement. As the hearing officer pointed out, a “locate or create” order renders the district responsible for making sure that the student’s next program has all necessary elements, in a way that a district need not do when a student attends a program as the result of a settlement. The hearing officer encouraged (but did not require) the district to engage the independent consultant, with the parents’ consent, to assist in the process of identifying and adapting a program and monitoring its effectiveness. He reiterated the district’s responsibility to continue funding the Clarke day program on a stay-put basis until an appropriate program was ready to provide services to the student.

The hearing officer emphasized the importance of locating or creating the student’s next placement as soon as possible. He cautioned the parents that any lack of cooperation on their part during that process could affect any future claim for reimbursement of their living expenses during the stay-put period. In the event that the parents delayed or hindered the placement process (thus prolonging the period of stay-put), the hearing officer implied, their claim for reimbursement of future living expenses on a stay-put basis (from the date of the decision until the identification of an appropriate program) could be reduced or denied. Of course, the parents retain all of their rights to advocate (within the parameters of the hearing officer’s decision) for an appropriate placement for their daughter, and to refuse consent to any placement that does not meet the criteria set forth in the “locate or create” order. They also retain the right to appeal the decision if they choose. The hearing officer’s admonition serves as a reminder, however, that the parents must cooperate with the district and with any potential placement in procedural matters such as making the student available for interviews and consenting to communications with outside service providers. The hearing officer also warned the parents not to undermine the placement process by, for example, communicating to a proposed placement an intent to oppose that placement. If parents disregard such warnings, they do so at their peril.

This case raises interesting and complex questions regarding stay-put, burden of proof, the need to state one’s claims clearly, and the need for a district to identify a placement clearly. The decision also demonstrates the powerful impact of an evaluator’s testimony when that professional, like the one in this case, has extensive knowledge of the student, through both testing and observation, over a substantial period of time; has sophisticated expertise in his or her field; and can testify clearly, authoritatively, and objectively about the student’s needs. The case points up the need for a party to listen to its expert’s opinions, and to shape its prayer for relief accordingly. (See also Stoneham, discussed below.) Here, unless the evaluator’s testimony about Clarke’s inability to provide an appropriate language-based program came as a surprise to the parents, it seems strange that the parents persisted in seeking a placement that their evaluator could not endorse. Lastly, this decision reminds practitioners that a hearing officer is not limited to considering the placement(s) proposed by the district and that proposed by the parents. If, as in this case, the hearing officer finds that neither party has proposed an appropriate option and that the parties’ proposed programs cannot be made appropriate, the hearing officer always has a further option available: the “locate or create” order. As this case demonstrates, the result may not be what either party wants. Moreover, “locate or create” can be fraught with pitfalls, as it requires the parties to cooperate after they have just been through the highly adversarial hearing process, which almost always takes a severe toll on the parties’ relationship. Thus, “locate or create” can set the stage for future disputes, as the very parties who have just disagreed vehemently throughout the hearing process may continue not to see eye to eye regarding the next proposed placement. Nevertheless, if parties are unable to settle their differences so as to avoid a hearing, and are unable to persuade the hearing officer as to the appropriateness of any of the placements they have proposed, then “locate or create” may provide the only remaining avenue.

 Testimony of district’s educator and consultant outweighs that of parents’ experts; IEP and placement upheld, with modifications agreed to by district

The hearing officer who issued the Quincy ruling and decision also authored this quarter’s only decision in which parents challenged a proposed in-district placement and sought placement in a private special eduction school. Over the objections of the pro se parents, the hearing officer in Stoneham Public Schools, BSEA # 1300160, 18 MSER 365 (September 20, 2012, Crane), ruled that the district’s proposed IEP was appropriate with modifications.

The student in Stoneham was a 9-year-old third-grader with pervasive developmental disorder (PDD), a language-based learning disability, and a reading disability. He was described as “substantially compromised regarding his ability to understand and use language.” 18 MSER at 366. During second grade, he had attended an in-district program that appears to have followed a partial inclusion model: he had received pull-out language-based instruction for English language arts and math, and had been placed in the general education classroom with the support of a special education teacher or aide for all other subjects and activities. In the spring of second grade, the parents consulted an independent educational specialist, who recommended that the student receive 2-3 hours per day of intensive language arts instruction and that he receive all academic instruction in a substantially separate language-based setting. The district amended the student’s IEP to propose, for the final few weeks of second grade and the first few weeks of third, that the student receive all of his academic instruction in the separate setting. The district rejected the recommendation for 2-3 hours of intensive language arts instruction per day. The parents, in turn, rejected the proposed amendment. They placed the student unilaterally in the Tufts Reading Program for the summer and sought placement at Learning Prep School for the 2012-2013 school year.

The hearing officer first considered the appropriateness of the IEP for the start of the 2012-2013 school year. He stated that he would look to the student’s progress during the previous school year under the original version of the IEP, as he found the two versions to be substantially similar. (Query how similar they could have been if, as appears, one offered a partial inclusion model and one a substantially separate program? In the instant case this difference may not matter, however. If a student is found to have made effective progress under a partial inclusion program, then a fortiori it would be assumed in most cases that he would make effective progress in a more intensive substantially separate setting.)

As in most placement disputes, the hearing officer’s determination turned on the credibility of the expert witnesses. Although the hearing officer found the parents’ independent consultant to be credible, he was not persuaded by her recommendation for 2 hours of reading instruction and 45 minutes of writing instruction per day. The hearing officer concluded that, although this amount of instruction might benefit the student, it was not necessary in order for him to receive FAPE. The hearing officer credited instead the testimony of the student’s special education teacher, who had taught the student over the course of the 2011-2012 school year and would continue as his teacher in 2012-2013. The hearing officer found that this teacher understood the student’s needs better than the parents’ independent consultant did. He found the teacher’s testimony to be “candid, objective and authoritative.” 18 MSER at 370. The hearing officer found it significant, moreover, that the special educator “was willing to support adding services (sound segmentation instruction, additional written language instruction and additional consultation) to improve Student’s IEP where it was weak.” Id. (In light of the teacher’s agreement that the student needed these services, one might ask why the district had not further amended the IEP in order to add them and whether, in light of the district’s failure to do so, the teacher’s testimony did not constitue an admission that the IEP failed to provide FAPE.)

In the hearing officer’s view, the teacher’s testimony alone might not have been enough to outweigh that of the parents’ independent consultant. In this case, however, the district had also retained an independent consultant, whose testimony strongly supported that of the special education teacher. The hearing officer placed substantial weight on this consultant’s testimony, noting that the consultant is one who nearly always testifies on behalf of parents and students. He also remarked on the fact that she had been present during the testimony of the parent’s consultant and the district’s other witnesses. (This is something that often strengthens the testimony of an independent evaluator, but that parents cannot always afford to have their independent consultant do.)

The hearing officer went on to find that, with the addition of the services that the district’s special educator and consultant were recommending, the student would receive a total of nearly 12 hours per week of language instruction for 2012-2013. The hearing officer stated that this appeared to meet the parents’ consultant’s recommendation for 2-3 hours per day (i.e., 10-15 hours per week) of such instruction. He concluded that, with the addition of the services that the district’s witnesses recommended, the IEP would provide the student with FAPE.

The parents argued that the IEP failed to address the student’s social deficits. The parents pointed to the recommendations of an independent neuropsychologist for explicit instruction in the form of a social pragmatics group. The neuropsychologist testified at hearing; however, she had last evaluated the student one and a half years earlier (January 2011) and had never observed the student interacting with peers, at school or otherwise. The hearing officer placed more weight on the testimony of the student’s special education and general education teachers and school psychologist, who had more recently and extensively observed the student in various settings. The hearing officer credited their testimony that the student did not need explicit social skills instruction, only the accommodations that his IEP provided.

The parents also attempted to argue that, no matter how many services were added to his IEP, the student’s needs could not appropriately be met within the district. The hearing officer found no credible support for this position. The parents’ educational consultant had said only that the student’s program must be cohesive, with language-based instruction consistently taught and reinforced across the curriculum (a proposition with which the district agreed). The consultant did not state that his 2011-2012 program had lacked the necessary cohesiveness, or that the 2012-2013 program would not be sufficiently cohesive if provided according to his IEP. (The expert had observed the 2011-2012 program, so she had a basis on which to testify if she believed that that program lacked cohesiveness. It is unclear whether her failure to do so was due to her lack of agreement with that proposition, or whether it was perhaps due instead to a lack of skill on the part of the pro se parents in eliciting the information when examining the witness.) The hearing officer found that the district’s proposed program would be cohesive, due to the fact that the same teacher would provide all academic instruction as well as Wilson reading instruction. There was an issue as to whether the IEP provided sufficient coordination between the teacher and the speech-language pathologist. The teacher supported doubling the proposed IEP’s amount of consultation between the two (from 15 to 30 minutes per week); with that change, the hearing officer found that the program provided sufficient coordination.

The parents also raised an issue regarding Stoneham’s past failure to educate the student appropriately. This is an argument that often feels powerful to parents, and resonates emotionally with them for good reason. (In esssence, the argument is: “How can I trust you to do the right thing now, when you haven’t done it, despite my many communications with you about my child’s needs, up to this point?”) It generally carries less weight with hearing officers, though, as this case demonstrates. Here, the parent presented testimony and argument to show that the district “has failed and will likely continue to fail to educate her son appropriately,” based, for example, on its failure to perform a three-year re-evaluation properly, failure to monitor his progress properly, failure to share her sense of urgency about his reading deficits, and failure to allow him to access the curriculum and participate with typical peers. 18 MSER at 371. Although each of these allegations, if proven, could well violate the special education laws, the hearing officer found that they did not add up to a denial of FAPE. As he stated, while he did not doubt that “Stoneham’s efforts have not been perfect and may not be sufficient to maximize Student’s educational potential,” he found “no credible support for the position that these alleged shortcomings compromised his opportunity to receive an education that is ‘appropriate’, as that term is defined in state and federal special education law.” Id. The hearing officer went on to explain that “‘[a]ppropriateness and adequacy are terms of moderation,’ which do not require ‘the highest attainable level or even the level needed to maximize the child’s potential.’” Id. (quoting Lenn v. Portland Sch. Comm., 998 F.2d 1083, 1086 (1st Cir. 1993)).

The lesson for parents is that, in order for a district’s past shortcomings to figure at all into the argument regarding prospective placement, a parent must show that the past violations actually deprived the student of FAPE. An argument based on the parents’ lack of trust or the district’s perceived inability to do the right thing will have no chance of success if it is based only on technical violations. Moreover, even if the shortcomings are substantive (as were some of those stated by the parents in this case), it is not enough merely to allege them; rather, the parents must prove the prejudicial effect of the district’s misconduct.

For all of these reasons, together with the fact that the district’s program was less restrictive, the hearing officer concluded that the district’s IEP, with the addition of 15 minutes per day of sound segmentation instruction plus two periods of written language instruction and 15 minutes of speech-language consultation per week, would meet the student’s needs. He therefore denied the request for placement at Learning Prep.

The hearing officer next turned to the parents’ claim for reimbursement of extended school year expenses for the Tufts summer reading program. He found that the parents were not entitled to reimbursement because, he stated, the parents had not presented any evidence regarding either the inappropriateness of Stoneham’s proposed summer services or the appropriateness of the Tufts program. (Again, this oversight may have been due to the fact that the parents were not represented.)

The Stoneham case, like Quincy (see preceding comment), shows the importance for parents of making sure before proceeding that your experts’ testimony really does support the relief you seek. If the district’s proposed program appears to fall within the parameters recommended by one of your experts, it will be upheld unless you and your experts can articulate a compelling reason why the program does not in fact provide FAPE. If the program meets the experts’ academic recommendations but you are relying on other factors (such as the student’s social needs in this case), your evaluator needs to have observed the program and has to be able to testify that the program will not meet those needs. The expert’s testimony must be elicited clearly, must address relevant questions, and must be based on recent evaluation and observation.

Often, when the district’s proposed program appears on paper to be close in model to the one recommended by the parents’ expert, it will be wise to try the district’s program and have the expert observe the student in the program, so that the expert can determine whether or not the program is appropriate in practice. If it is not, then this testimony will strengthen the parents’ case.

It can be frustrating for parents when the district states what it is “willing” to do but doesn’t actually propose an amendment to the IEP. As in the Quincy case (see preceding comment), it would seem that a district should be held to the program or placement outlined in the IEP at issue, and not be allowed to try a case based on what it “would’ve/could’ve/should’ve” added. If the district believed that additions to the student’s program were necessary, the district had an obligation to amend the IEP at its earliest opportunity. (In some situations, doing so could obviate the need for a hearing.) Arguably, the parents in this case would have a claim for compensatory education from the date that the district first admitted that the student needed additional services, even if no amendment is prepared. Again perhaps due to the fact that the parents were pro se, no such relief appears to have been sought.

 Referrals to out-of-district placements: if the first is appropriate, no right to a choice

The third placement decision of the quarter, Hudson Public Schools, BSEA #12-5963, 18 MSER 345 (June 22, 2012, Berman), provides another illustration of the need for parents to make sure that they have support for their position before filing for hearing. In Quincy and Stoneham, the parents lacked sufficient factual support for their positions; in Hudson, the parent lacked legal support.

The pro se parent and the district agreed that the student, a 14-year-old boy who had been dismissed from his previous placement at a collaborative, continued to require an out-of-district placement. For approximately a month after leaving the collaborative, the student attended a partial hospitalization program at Wayside Academy. The district sent a referral packet to Wayside, which operates an approved private special education day program that the parent had appeared to request in several previous communications. The parent requested that referral packets be sent in addition to two other private programs. The district refused, citing the student’s need for an immediate placement and its perception that sending additional packets would delay the process. The district stated that it would send packets to other programs if Wayside rejected the student. Wayside accepted him, however, so the district proposed that as his placement. The parent rejected it. The student remained at home with tutoring for more than three months between the date on which Hudson formally offered the Wayside placement and the date of the hearing officer’s decision.

The parent apparently labored under the mistaken impression that she was entitled to demand referrals to multiple programs, so that she would have a choice of placements. The hearing officer concluded that there is no such right. Once a district proposes an appropriate placement, it has fulfilled its obligation to offer FAPE; it need not offer multiple appropriate programs. As the hearing officer stated, “[T]he requirements of the IDEA are satisfied as long as the School offers a placement that is likely to meet the Student’s needs, which is what occurred in the instant case.” 18 MSER at 351.

Of course, districts often do make multiple referrals, and for good reason. Sometimes the student’s urgent need for a placement means that the net should be cast more widely, and that more referrals should be made in order to turn up a viable, available option. Sometimes the parents and district will not have enough information to be able to determine in advance which program(s) would be appropriate for the student; they need multiple referrals so that they can obtain and sift through information in order to arrive at a placement decision. There is no set number of programs that a district needs to consider, however, as long as it offers an appropriate one.

In this case, the district presented testimony of its assistant special education director as to Wayside’s appropriateness for the student. The parent presented no testimony to the contrary. She argued, at most, that Wayside was “possibly inappropriate” because there was nothing to which to compare it. 18 MSER at 350. As the moving party, she needed to present more definitive evidence, showing that Wayside would not meet the student’s needs. This she did not do. Thus, the hearing officer upheld Hudson’s proposed IEP and placement.

This case points to the need for parents to make sure of the legal basis for any position that they intend to take, as well as to marshal the evidence in support of those positions, before filing for hearing. Here, instead of asserting a putative right to multiple referrals, the parent needed to check the law (where she would have found no statute or regulation requiring what she sought) and needed to assess the evidence as to Wayside’s appropriateness. It does not appear from the decision that the parent did much, if anything, to investigate Wayside and find out whether it was appropriate for her son. This generally requires an observation of the proposed placement by an independent expert who has evaluated the student or is otherwise familiar with his needs. Even in the absence of an expert, the parent could have exercised her own right to observe the placement proposed for her child. MGL c. 71B, §3. An observation could either have allayed her fears about Wayside’s appropriateness, or allowed her to obtain some evidence that Wayside was not appropriate. As discussed in the preceding comment, it can often be a good idea to try the proposed placement, as a means of finding out whether it can meet the student’s needs. In this case, the student was already attending one program (partial hospitalization) at Wayside; presumably it would not have been too disruptive for him to move to the proposed special education program, even if on a temporary basis. Instead, the student ended up at home for more than three months.

The parent may have confused the issue of multiple referrals with several similar but distinct principles of law. One is the requirement that “[e]ach public agency must ensure that a continuum of alternative placements is available to meet the needs of children with disabilities for special education and related services.” 34 C.F.R. §115(a). As 34 C.F.R. §115(b) makes clear, however, “continuum of alternative placements” refers to the need to have a variety of placement models available. Once the student’s Team decides on a model (out-of-district special education school, in the Hudson case), the regulation does not require the district to propose a variety of placements within that model.

Also distinguishable is a parent’s right to participate in the determination of the student’s specific placement. See 20 USC §§1414(d)(1)(A)(i)(IV), (VII), 1414(e); 34 C.F.R. §§300.322, 300.320, 300.501; 603 CMR 28.05(6), 28.06(2); Boston Public Schools, BSEA #04-2506, 10 MSER 311, 313-19 (July 30, 2004, Crane). The district need only offer one placement as a result of that process, however. Here the hearing officer found that “Parent has been continuously and extensively in Student’s educational planning,” and that “[w]hether or not Hudson always has deferred to Parent’s wishes, it has consistently taken her input into serious consideration, as required by law.” 18 MSER at 351. Thus, the requirement of parental participation was satisfied.

The hearing process is time-consuming and labor-intensive. Before invoking it, and at each stage of the litigation thereafter, parents need to consider carefully what their goals are, whether those goals can be achieved in other ways (e.g., by settlement), whether the law supports the theories on which they seek relief, and whether they can marshal the factual evidence necessary to prove a case for that relief. Here, because the pro se parent (hindered, no doubt, by her lack of expertise) fell short at each of these steps, it was practically a foregone conclusion that the decision would go, as it did, in the district’s favor.

 Bringing state agencies into a BSEA case

When parents believe that their child requires a residential placement in order to receive a FAPE, a school district will often take the position that the residential portion of the placement is not needed for educational reasons and that the cost should therefore be borne by a state agency such as the Department of Children and Families (DCF), the Department of Developmental Services (DDS), or the Department of Mental Health (DMH). The BSEA has statutory authority to bring state agencies into a case (“joinder”) so that the hearing officer may determine whether services from one of the state agencies will be needed “in addition to the program and related services to be provided by the school [district]” and, if so, may order the agency to provide services. MGL c. 71B, § 3. This simple statutory formulation is not so simple in practice because the school district and the state agency often end up pointing their fingers at each other. The state agency will most often respond that, if the child needs a residential program, the need is educational in nature. If proven, that would mean that the district is responsible under IDEA and state special education law to provide the residential program, and that it is not the responsibility of the agency. A related issue that has not been definitively resolved is whether the BSEA can order a state agency to fund a specific residential placement.

Nauset Regional School District, BSEA # 1300562, 18 MSER 342, is another in a series of cases in which the parents filed against the school district for a residential placement and the school district moved to join a state agency, in this case DDS, as a party. The parents supported the move to bring DDS into the case, since the parents’ goal was to get a residential placement for their son, and whether the school district or the agency was going to fund the program did not matter to them.

The hearing officer granted the school district’s motion for joinder because DDS was already providing services to the student and, the hearing officer observed, “it seems possible that the BSEA would have to consider ordering DDS to provide residential or other services” even if the school district were ordered to provide educational services. 18 MSER at 344. The hearing officer acknowledged that whether the BSEA could order DDS to place the student at a specific residential placement was “arguabl[e],” but since the district’s and DDS’ responsibilities to the student “may become inextricably intertwined,” he ordered DDS to be involved in the BSEA hearing. We think that this was the right result, as it will generally be more efficient to have all of the potentially responsible parties before the BSEA in one proceeding, and should expedite the process of meeting the student’s needs.

 What role does the BSEA play in civil rights and tort claims for money damages?

This quarter the BSEA was again called upon to delineate its role in the adjudication of claims where the parents are seeking only money damages for a tort or a civil rights violation and are not seeking any educational services or placement. In Springfield Public Schools and Xylia, BSEA # 12-0781, 18 MSER 373 (2012), Xylia, a student on an IEP due to global developmental delays, was sexually assaulted when she was twelve years old by a classmate during recess on the school playground. Springfield personnel witnessed the assault and removed the perpetrator from Xylia’s class. The district placed the perpetrator in Xylia’s class again during the following school year, however. He threatened Xylia and raped her on two occasions. The parent filed a hearing request seeking monetary damages from the district for federal civil rights violations and state-based negligence claims, including negligent supervision by a teacher. The parent did not seek relief under IDEA or state special education law.

Even though the BSEA cannot award money damages and sees its expertise as adjudicating disputes concerning special education programming and accommodations, the parent brought the action to the BSEA because of the “exhaustion” requirement of the IDEA. Some court decisions have held that any dispute arising out of the provisions of special education services must first be brought to the state due process agency (in Massachusetts, the BSEA) before proceeding to federal or state court. Some courts have dismissed actions that were not first fully litigated at the administrative level, even if the claim was solely for monetary damages and did not involve claims brought under the IDEA or state special education law. Several BSEA decisions and cases within the First Circuit hold that hearing officers may issue rulings regarding the violation of non-special education laws even though they do not have the authority to remedy such violations. Given this lack of certainty, it is the wisest course of action to bring claims such as Xylia’s first in the BSEA, even if parents are not seeking any educational services and would prefer to file immediately in court. Otherwise, failing to file first in the BSEA could result in dismissal of the court action.

The hearing officer in Springfield decided that the parent did not need to go through an evidentiary hearing at the BSEA. She dismissed the hearing request because the parent was seeking relief exclusively under non-special education statutes; the only relief sought was money damages; the claim did not implicate any particular failure of special education services; and neither a BSEA hearing nor an administrative decision would aid a subsequent court action. Following the hearing officer’s dismissal, the case could be (and has been) commenced in federal district court. This result was in fact a positive result for the parent, who now had the authority of the BSEA allowing her to proceed to court to recover money damages without the need for an evidentiary hearing at the BSEA.

 Conclusion

In this quarter, we see the BSEA hearing officers wrestling once again with complex legal principles and intricate factual scenarios. We appreciate the care that they take, as always, to articulate their legal analyses clearly and to set out all relevant facts in detail. We look forward to the continued evolution of the law in each of the various and multifaceted areas that the cases present.

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