Commentary on Massachusetts Special Education Decisions: 4th Quarter, 2013, by Joseph B. Green and Melanie R. Jarboe:
May 01, 2014
MENTAL HEALTH CASES INVOLVE SEVERAL DIFFERENT ISSUES
Three cases in the 4th quarter of 2013 illustrate several of the issues that arise when students are hospitalized for mental health issues. Those issues are:
1. Is an “extended evaluation” necessary to determine the needs and the appropriate placement for the student? In re: King Philip Regional School District and Ken, BSEA #1400255, 19 MSER 344 (Hearing Officer Raymond Oliver).
2. What is the school district’s financial responsibility for educational programs connected with a hospitalization when the student was not on an IEP at the time he/she is hospitalized? In Re: Hampden-Wilbraham School District, 19 MSER 330, BSEA #1403110, 19 MSER 330 (Hearing Officer Rosa Figueroa).
3. Whether a social service agency like DCF, DMH or DDS should be made a part of the case that the BSEA is considering concerning residential placement for social/emotional/mental health reasons? In re: Agawam Public Schools and Massachusetts Department of Children and Families, BSEA #1403554, 19 MSER 323 (Hearing Officer William Crane).
4. When is a residential placement necessary for educational reasons and is therefore the responsibility of the school district? In re: Agawam Public Schools, BSEA #1403554, 19 MSER 325 (Hearing Officer William Crane).
One of the issues that frequently arises when a Student suddenly has serious social/emotional or mental health issues is whether additional, non-academic evaluations are necessary and whether the additional evaluations should be done in a setting other than the Student’s current placement. “Extended evaluations” are not a part of the federal special education law (IDEA). However, Massachusetts special education regulations provide that AIf the Team finds the evaluation information insufficient to develop an IEP, the Team, with parental consent, may agree to an extended evaluation period. 603 CMR 28.05(b). Extended evaluations are most often conducted at a different location that has the resources to do evaluations and assessments that the district is not able to do. The location where the extended evaluation takes place is not an IEP “placement” and it cannot exceed eight school weeks.
In Re: King Philip Regional School District and Ken, BSEA #1400255 (Oliver), 19 MSER 344.
Ken, the Student in King Philip, had been in an out of district therapeutic placement (BICO) from 3rd grade through 8th grade when the IEP Team, with the parents’ agreement, determined that Ken could transition back to public school at King Philip Regional High School. While his first semester of 9th grade was relatively successful, Ken fell apart in the second semester. On the first school day after the Boston Marathon bombing Ken set off a “stink bomb” in class. On other occasions he refused to follow directions, refused to do school work, and refused to leave the classroom after getting agitated, necessitating the rest of the class leaving Ken alone in the room with the teacher and the assistant principal. There were also incidents of Ken bullying and harassing peers, and toward the end of the year, Ken said he wanted to come to school with a can of gasoline and pour the gasoline up and down the hallways and the light the school on fire. Ken’s private therapist felt that Ken was exhibiting signs of psychosis, and Ken was admitted to the day hospitalization program at Westwood Lodge for 10 days.
Westwood Lodge did not provide any assessments or evaluations other than listing a diagnosis of Mood Disorder in the discharge instructions. When Ken returned to high school in the fall, Ken’s mother requested updated evaluations. The Team agreed and asked for the mother to consent for records to be sent to BICO and four other therapeutic day schools that could potentially conduct an assessment/extended evaluation. The parents did not consent and insisted that Ken could be evaluated while he remained at King Philip High School. The school district filed a hearing request asking the Hearing Officer to order the out-of-district evaluation despite the parents’ lack of consent. The Hearing Officer found that Awhile Ken has maintained better school behavior during the 2013-2014 school year at KPHS, his fundamental issues remain unresolved. The Hearing Officer agreed with the school district that Ken needed to have the extended evaluation in a therapeutic special education environment outside of the public high school, and since the parents did not consent to those locations, the Hearing Officer granted “substitute consent” for the district to go forward.
Financial Responsibility for Hospital-Affiliated Educational Programs
In Re: Hampden-Wilbraham School District, 19 MSER 330, BSEA #1403110 (Figueroa), 19 MSER 330.
The district in Hampden-Wilbraham paid $5,775 for a portion of the Student’s educational services while she was at the Brattleboro Retreat in Vermont after the Student had an emotional breakdown in public school during 8th grade. The only issue in the case was whether the district was responsible for an additional $3,025 for another portion of the Student’s education at the hospital-affiliated educational program. Although there was not a lot of money in dispute in this particular case, the issue of whether the school district is responsible for funding the educational portion of hospitalizations does come up occasionally in mental health cases when the hospitalized student is not a special education student and does not have an IEP. When the student was hospitalized in this case, she was a regular education student, not a special education student. In this situation, parents should press the district for a finding of special education eligibility based on an emotional impairment as soon as possible, so that when the student is stabilized enough to access the educational curriculum in or near the hospital, there will not be any question that the student is eligible for special education services and an educational placement that will meet her needs. In this case, however, the parents decided not to consent to the release of information regarding the Student’s emotional or psychological status until about three months after the Student’s initial hospitalization.
Although the parents argued that the school district should have found their daughter eligible for special education services and should have begun paying for her educational services at the hospital affiliated program when she first was able to access educational services, the fact that the parents delayed for three months to give their consent to share information with the district concerning their daughter’s condition Areleased [the district] from referring Student for special education until such time as Parents requested that Hampden do so [three months later]. Hampden provided tutoring right away, as required by Massachusetts regulation 603 CMR 28.03(3)(c), for all students who are hospitalized for more than 14 days, but whether the district was responsible for funding the actual educational program before the Student was found eligible Aturns on the question of when Hampden knew or should have known that Student was eligible to receive special education services. Refusing to allow the district to receive information about the Student’s emotional impairment let the district off the hook for the period before the Student was found eligible.
Social Service Agency Involvement in BSEA Proceedings
The more common and highly complex issue in mental health cases arises when there is little real dispute that a student on an IEP with an emotional impairment requires a residential placement, but the school district insists that it is responsible only for a day therapeutic placement because the student’s need, if any, for a residential placement is not related to the student’s educational needs. When that becomes the issue, the school district will almost always seek to force a social service agency into the case, usually the Department of Mental Health (DMH) or the Department of Children and Families (DCF) or the Department of Developmental Disabilities (DDS). This was the issue in Agawam Public Schools and Massachusetts Department of Children and Families.
In Re: Agawam Public Schools and Massachusetts Department of Children and Families, BSEA #1403554 (Crane), 19 MSER 323.
The eleven-year-old special education Student was admitted to Hampstead Hospital for the second time in two months after demonstrating self-injurious behaviors. The issue before Hearing Officer William Crane at this preliminary stage was whether DCF was a “necessary” party. The BSEA has jurisdiction over a social service agency if the Hearing Officer finds that “additional services [from a social services agency] may be necessary to ensure that the student will be able to access or benefit from the school district’s special education program and services.” Agawam argued that those “additional services” from DCF were likely to be a residential placement. However, Hearing Officer Crane denied the request to bring DCF into the case because DCF had already denied the parents’ request for voluntary services and therefore DCF had no formal relationship with the family. The Hearing Officer found it unlikely that he could order DCF to provide services or a residential placement because the Student was not in the custody of DCF either by court order or by a voluntary placement.
In another preliminary ruling in the Agawam case, the Hearing Officer denied the parents’ request to order an “emergency placement” before the hearing. The parents claimed that an emergency placement was necessary because the Student was in the hospital and was therefore not able to attend his day placement at the May Center. Immediately prior to the hospitalization, Student was engaging in very dangerous self-injurious behaviors both in the home and could not be safe at home. Supported by affidavits from the father and from the parents’ expert, the parents’ contention was that the Student was not safe to leave the hospital unless he went directly to a residential placement. Parents’ and their expert’s affidavits stated that they had located a Melmark program in Pennsylvania that was appropriate and had an opening.
Recognizing that the situation was indeed direCthe Student was ready to be discharged from the hospital but was not safe to come homeCHearing Officer Crane nevertheless determined that he could not order the school district to place the Student at the Melmark program in Pennsylvania without a full evidentiary hearing. Among the reasons the Hearing Officer cited for denying the motion for an emergency placement were the following:
1. A full hearing was necessary to determine whether the Student required a residential educational placement in the first placeCthat is, whether the educational benefits to which the Student was entitled could only be provided through around-the-clock special education and related services necessitating placement in a residential educational facility. The determination could not be made on the basis of the affidavits of the father and the expert alone because the father was not an expert and the expert did not state explicitly why less restrictive solutions would not be appropriate, so that issue would have to explored at a hearing.
2. Even if it were established that Student needs a residential placement, it had not been established that there were no appropriate residential programs in Massachusetts. If there were an appropriate Massachusetts placement, it would be unnecessary and inappropriate to order a placement in Pennsylvania. Although the Parent’s expert stated that he was Afully confident in Melmark’s programming, neither the parents nor the expert had actually visited the Melmark program in Pennsylvania and the program had not determined that the Student would be accepted there.
3. Even if it were established that Student needed a residential placement, Agawam asserted that a residential placement would be needed only for non-educational reasons, in which case Agawam would have no responsibility to provide residential services. In order to determine whether a residential placement, if required, was for educational purposes, a full hearing was required.
The Hearing Officer, without a full hearing, could not determine the necessity of or responsibility for a residential placement. Because the parents had made credible allegations regarding the severity and dangerousness of Student’s behavior if he were to be discharged from the hospital and returned to a day placement and living at home, the Hearing Officer found that there was an urgent need to determine Agawam’s responsibility and scheduled the hearing quite soon after motions.
GOOD GRADES AND PASSING MCAS SCORES MAY NOT BE ENOUGH TO SHOW EFFECTIVE PROGRESS
Hearing Officer William Crane issued two decisions this term in cases that provide helpful and nuanced discussion of what it means to make “progress” in a special education program. In both cases, the parents proceeded pro se and ultimately prevailed against the school district’s claims that the Student was making progress or did not need an IEP.
In Re: Pembroke Public Schools, BSEA # 1310012 (Crane), 19 MSER 299
In Pembroke Public Schools, the parent and the school district did not disagree about the Student’s success in the substantially separate language-based program, which provided separate language-based classes for all academic subjects except math and provided 1:1 or 1:2 reading instruction with Orton-Gillingham methodology. The Student earned very high grades, progressed in academic areas, and passed MCAS. The parties even agreed that the Student was appropriately placed in the language-based program at Pembroke High School. The dispute was about whether the Student required additional direct instruction to address his deficits in phonological awareness, decoding, encoding, reading fluency, reading comprehension, and writing. The district’s position was that the Student’s high grades and access to the curriculum meant that he was making adequate progress and required no additional services. The parent disagreed and claimed the IEP did not provide FAPE because it did not include the recommendations of her expert, Catherine Mason, M.Ed., who had evaluated and observed the Student on the parent’s behalf. The parent proceeded pro se and, perhaps because there was so little at stake, the district also proceeded without an attorney. Hearing Officer Bill Crane agreed with the parent’s expert that additional services were required for the IEP to provide a FAPE.
Ms. Mason testified that a comparison of the Student’s test results over time indicated that he was making insufficient progress in phonological awareness and phonological processing. In fact, the Student’s scores on standardized tests measuring phonological memory and decoding had actually decreased over a two-year period. Despite modest progress in the Student’s reading rate, accuracy, and fluency, his skills nevertheless remained well below expectations based on his “at least average” academic potential. Ms. Mason’s testing suggested, therefore, that the Student was not actually making effective progress in his areas of need despite his good grades and passing MCAS scores. Ms. Mason persuasively testified that the Student’s future progress in literacy skills would also be minimal without additional, direct, remedial services. Ms. Mason was particularly concerned with the Student’s ability to make progress as he encountered higher-level material in the remaining years of high school and beyond.
To remediate the Student’s underlying language-based weaknesses, Ms. Mason specifically recommended that the Student be evaluated with the Lindamood Phoneme Sequencing Program (LiPS) and that Pembroke provide intensive tutorial instruction in the amount recommended by the LiPS evaluators. She also recommended that the Student receive instruction with a reading fluency program such as the Read Naturally program. Although Pembroke indicated that it would be willing to provide the Student with Read Naturally instruction, and did not dispute the Student’s need for explicit instruction in phonological awareness, Pembroke questioned the appropriateness of the LiPS program for that purpose. However, the Hearing Officer ordered the district to arrange for the Student to be evaluated through the LiPS program and to provide instruction in the type and amount that the evaluator recommended.
Thus, despite the fact that the Student was accessing the curriculum, earning high grades, and was properly placed in Pembroke’s language-based program, he was not making effective progress due to continued weaknesses in specific areas that that were impacting and would continue to impact his literacy abilities if direct remedial services were not provided.
In Re: Triton Public Schools, BSEA # 1400006 (Crane), 19 MSER 334
In Triton Public Schools, the school district filed a hearing request seeking a determination that the Student, who had been diagnosed with Specific Learning Disability in the areas of reading and written expression, Auditory Processing Disorder, and Apraxia of Speech, had made so much progress that he was no longer eligible for special education. At the time of the hearing, the Student was receiving inclusion support, pullout instruction in ELA, and counseling services pursuant to his last-accepted IEP.
As in Pembroke, the parties agreed that the Student had experienced Anotable and documented educational successes in his program, received high grades, and had obtained passing MCAS scores. The parties also agreed that the Student exhibited weaknesses in phonological awareness, phonological memory, and spelling. The dispute was limited to whether, as the result of his disability and in the context of undisputed academic success, the Student required any special education or related services in order to make effective progress in the general education program.
Triton took the position that the Student was performing successfully in class and on the MCAS and that his weaknesses therefore did not require direct remediation or specialized instruction, going so far as to claim that it would be a disservice to the Student to continue to provide special education services. Like Pembroke, Triton sought to limit the definition of progress to grades and MCAS scores, neglecting to acknowledge or credit the more subtle impacts that the Student’s weaknesses were having and would have in the future on his ability to make progress commensurate with his potential.
Anne Marie Lasoski, Psy.D., and Melissa Ghiringhelli, M.S., CCC-SLP, testified on behalf of the parent and noted that the Student’s ongoing deficits in fundamental language skills were impeding his reading and writing abilities in the present and would pose substantial challenges for the Student as he faced the increasing demands in the future. The experts testified that notwithstanding the Student’s academic successes, his persistent and ongoing deficits in certain, discrete areas limited his ability to learn and could not be remedied without specialized instruction. The Student’s developmental pediatrician, Alison Schonwald, M.D., testified that the presentation of the Student’s deficits was subtle, and therefore could have been easily missed by his teachers, but that the deficits themselves and the impact that they had on the Student’s ability to learn were significant and not subtle.
Hearing Officer William Crane concluded that the Student’s language deficits substantially limited his ability to make progress in reading and writing commensurate with his potential and that the Student therefore required special education and related services. Of particular interest was the Hearing Officer’s treatment of Triton’s argument that the Student should not remain eligible for special education on the basis of possible future difficulties when he was, at that time, capable of succeeding in the regular education environment. The Hearing Officer said he was persuaded by the testimony of the parent’s witnesses that if the Student’s learning deficits were not addressed appropriately in the present, his foundational skills would not be appropriate developed and his educational potential would be limited, which ran contrary to the very purpose of special education law.
“STAY-PUT” CAN BE A DOUBLE-EDGED SWORD
“Stay-put” is a short-hand way of describing a provision of federal and state special education law. 20 USC ‘ 1414(j); 34 CFR ‘ 300.518; MGL c. 71B, ‘ 5; 603 CMR 28.08 (7). This section of the law is meant as a protection for students, and provides that if there is a dispute about a program or placement for a special education student, the student is entitled to remain in the last educational program that was accepted by the parents until the dispute is resolved by the BSEA or a new program is accepted by the parents. A claim of “stay-put” maintains the status quo when one partyCusually the districtCwants to make a change. In a somewhat unusual twist on stay-put, two school districts invoked stay-put in cases decided this quarter.
In Re: Ashland Public Schools and Elijah, BSEA #1402087 (Byrne), 19 MSER 310
In Ashland, the parent moved to Ashland from Northbridge with a fully accepted and implemented IEP from Northbridge. Pursuant to that IEP, the nine-year old Student with Autism Spectrum Disorder had been attending the Institute of Professional Practice Durham Education Center (“Durham”). However, just before moving to Ashland, the parent unilaterally removed her son from Durham. After enrolling in the Ashland Public Schools, the parent told the new Ashland Team that she wanted her son placed in a program in the district. Ashland felt that they did not have an appropriate program for Elijah and also felt that they were obligated to comply with the accepted IEP that the family brought from Northbridge, especially since there were no reports or evaluations that recommended a different setting from the one Elijah was in, pursuant to the accepted IEP from Northbridge. When the parent adamantly refused to return Elijah to Durham, Ashland even offered to send packets to three other comparable programs and then to two additional schools that the parent requested. When the parent was not cooperative, the district filed for an expedited hearing because Elijah was not in any program and was not receiving any special education services.
Hearing Officer Lindsay Byrne confirmed that Ashland had acted in full compliance with the law by agreeing to implement the IEP from Northbridge or to find a comparable program.
In Re: Shrewsbury Public Schools and Harlan, BSEA #1306803 (Byrne), 19 MSER 327
Harlan, a child with autism spectrum disorder and significant developmental delays, had been in the “ELC” partial inclusion program in Shrewsbury since he was six years old pursuant to an accepted IEP. The school district filed for a hearing at the BSEA when Harlan was nine, asking for a ruling that continued placement in the same program was appropriate after Harlan’s guardian rejected the district’s proposed IEP. In fact, Harlan’s guardian had rejected every IEP for the previous three years, at one point listing more than 101 “concerns,” but proposing no alternative program or placement. Although a full evidentiary hearing had not yet occurred, Hearing Officer Lindsay Byrne was asked to rule on what Harlan’s legal placement was while the case was pending. The Hearing Officer confirmed that the school district was “justified, indeed obligated” to continue implementing the three-year old IEP, even though it was designed for Harlan when he was only six years old. The Hearing Officer pointed out that however illogical and potentially limiting the result may have been, the stay-put provision “provides a ready shield against any claims the guardian may have concerning [Harlan’s] lack of effective educational progress [during the previous three years].”
Comment: These two stay-put cases illustrate how important it is for parents seeking a change in the IEP to be clear on what they want and to have credible professional support for their proposed changes. Otherwise, school districts are “justified, indeed obligated,” to implement the last agreed IEP, even if it is very old or from a different school district.
DISTRICT’S PROGRAM FOUND SUFFICIENT WHERE PARENTS REFUSE REQUEST FOR HOME ASSSESSMENT AND PARENTS’ EXPERT DOES NOT SUFFICIENTLY RELATE BEST PRACTICES RESEARCH TO THE INDIVIDUAL STUDENT
In Re: Shrewsbury Public Schools and Gabriel, BSEA # 1400468 (Byrne), 19 MSER 312
Shrewsbury Public Schools serves as a reminder of the requirement that IEPs are individualized and of the potential consequences of refusing district-proposed assessments. Gabriel was a five-year-old boy who was found eligible for special education due to a developmental delay that included weaknesses in social skills, adaptive skills, and language skills. He displayed significant self-stimulatory and behavioral difficulties at home. During his first year in Shrewsbury’s integrated half-day pre-kindergarten program, Gabriel made undisputed progress. His articulation improved, he was easily directed during displays of self-stimulatory behaviors, and he learned the classroom routines and age-appropriate adaptive and academic skills. The district conducted an FBA that showed that Gabriel’s self-stimulatory behaviors were brief and did not interfere with his access to or participation in classroom activities or social situations, and that he responded to adult redirection quickly and easily.
The parents sought a neuropsychological evaluation from Joseph Moldover, Psy.D., to clarify Gabriel’s profile. Dr. Moldover diagnosed Gabriel with high functioning Autism Spectrum Disorder in the presence of above-average intellectual functioning and academic achievement. Dr. Moldover recommended a full-day, full-year, ABA intensive program based on the research supporting intensive intervention for children on the autism spectrum, but he did not refer to any particular need of Gabriel’s. The Team disagreed that Gabriel required such a program due to his significant progress in his half-day preschool program. The district proposed continued placement in the half-day preschool program, which the parents accepted, and the district also offered Gabriel a spot in the afternoon preschool program on a tuition basis, which the parents refused.
Shrewsbury’s witnesses testified at hearing that Gabriel continued to progress in his second year in the half-day program. His self-stimulatory behaviors reportedly increased in frequency at the beginning of the year but abated quickly and did not interfere with his functioning. Gabriel’s teacher testified that he was behaviorally and socially indistinguishable from his peers, with very strong academic skills. Despite continued articulation difficulties, Gabriel’s speech was reportedly understandable for familiar listeners and did not interfere with his classroom functioning. Dr. Moldover observed Gabriel in his classroom and reported that, despite a well-organized, structured classroom community and “observable progress” in all developmental areas, that Gabriel’s pro-social behaviors needed increased attention. He continued to recommend a full-day, ABA-based program.
At various points during Gabriel’s preschool years, the parents had expressed concern about his behavioral issues in the home environment, including self-stimulatory, stereotypical, and aggressive behavior. Although Shrewsbury proposed home assessments on two occasions, the parents declined both times. In addressing the parents’ concerns about Gabriel’s behavioral issues in the home environment, the Hearing Officer highlighted the parents’ repeated refusal to allow Shrewsbury to conduct home assessments. If Gabriel’s behavioral difficulties in the home required educational intervention, Shrewsbury would be required to provide such services. In the absence of any evaluation data, however, the Hearing Officer found no basis to support an order for any additional services.
Families are often concerned, quite understandably, about consenting to a proposed home assessment. The idea of having district personnel in your home, observing you and your child, and writing up a report can be very troubling, particularly if the relationship between the family and the district is strained. In several scenarios, however, refusing a home assessment can have potentially negative consequences. Parents who do not want district personnel to conduct a home assessment must be mindful of the fact that they may be hampering their ability to have home services, goals targeting generalization of skills across settings, parent consultation, or other such services added to a child’s IEP. In such cases, it is advisable to seek mutually agreeable ways for the home assessment to occur, such as requesting that a non-district evaluator perform the assessment.
The Hearing Officer held that Shrewsbury’s IEP and placement in a half-day preschool program afforded Gabriel a FAPE. The parents’ expert’s testimony that research indicating that all children on the autism spectrum benefit from intensive programming was simply not adequate to convince the Hearing Officer that Gabriel, in particular, required such programming. As the Hearing Officer noted, federal and state special education law require services that are individually tailored based on a child’s particular needs and not based on broad categories of service by disability type. Given Gabriel’s undisputed progress in Shrewsbury’s program, and without a home assessment, the Hearing Officer found no evidence that Gabriel required more intensive services.
A REVIEW OF THE “MOVE-IN” LAW
Beverly Public Schools and Flora, BSEA #1309072 (Byrne), 19 MSER 306
Beverly provides an opportunity to examine the application of the so-called “move in” law, which often confounds families and districts alike. After the parents filed a hearing request alleging substantive and procedural violations against Beverly, Beverly filed a motion to join Saugus to the proceedings and a motion to dismiss the parents’ claims.
The move-in law, found at Chapter 71B, Section 5 of the Massachusetts General Laws, applies to special education students who are in out-of-district placements and who move (or, in the case of residential students, whose parents or guardians move) to a different district. The move-in law applies differently depending on when the move occurred and splits fiscal and programmatic responsibility between the two communities:
• If the move occurs between April 1 and June 30 of any fiscal year, the former community of residence is fiscally responsible for the balance of the fiscal year (through June 30) and the entire subsequent fiscal year.
• If the move occurs on or after July 1 of any fiscal year, the former community of residence is fiscally responsible for the costs of the student’s placement for the balance of the fiscal year in which the move occurred.
• Regardless of the timing of the move, the new community of residence becomes programmatically responsible for the student’s placement as of the date of the student’s move.
In Beverly, the Student’s last accepted IEP had been developed by the Saugus Public Schools and called for placement at the Futures Behavioral Therapy School, a private day school. The Student had attended Futures, first pursuant to the IEP and then pursuant to a settlement agreement, since at least August 2011. In October 2012, the family moved to Beverly and requested public funding for the Student’s continued placement at Futures. In November, Beverly proposed placement at a substantially separate in-district program that the Beverly Team believed was comparable to Futures. Beverly conducted the Student’s three-year re-evaluation during the winter and proposed placement in the same in-district program in April 2013. The parents rejected placement in the Beverly program and the Student remained at Futures, under the stay-put provision, which provides that in a dispute, the Student remains in the last agreed placement.
In their hearing request, the parents alleged several procedural and substantive violations against Beverly, requested a finding that Futures was the appropriate placement for the Student, and requested reimbursement for tuition paid during the 2012-2013 school year. Neither in their hearing request nor in subsequent pleadings did the parents allege any wrongdoing on the part of the Saugus Public Schools.
Although the parents argued that the move-in law did not apply, the Hearing Officer agreed with both Beverly and Saugus that the law did apply. Under the plain terms of the law, Saugus was financially responsible for the Student’s education through June 30, 2013. Beverly assumed programmatic responsibility as of the Student’s relocation in October 2012 and fiscal responsibility as of July 1, 2013.
Since there was no allegation of malfeasance with respect to Saugus, either from the parents or from Beverly, the Hearing Officer denied the request to bring Saugus into the case. The Hearing Officer denied Beverly’s motion to dismiss the parents’ claims that pertained to Beverly’s programmatic responsibility for the Student’s education between October 2012 and July 2013, including claims that the district’s proposed IEP and placement were not appropriate for the Student. The Hearing Officer granted the district’s motion to dismiss the parents’ claims that related to fiscal responsibility for the 2012-2013 school year, including reimbursement for tuition paid to Futures, because Saugus had fiscal responsibility for the 2012-2013 school year, and neither party had alleged any wrongdoing on Saugus’s part.