INTRODUCTION

            The BSEA had another busy quarter, closing out the calendar year with the issuance of six decisions and twenty rulings.  In three of those decisions, the parents were represented at hearing by their respective educational advocates – an infrequent but not unusual circumstance.  Four of the decisions this quarter, Arlington, Boston, Norwood, and Northborough and Southborough, are discussed within.  The Norwood decision is a continuation of a case on which we provided commentary last quarter; this time, however, the decision was not favorable for the family.  The Arlington decision, which is also a continuation of a case on which we provided commentary last quarter, arises within the context of parents’ claims relating to their student’s placement at an unapproved school.  Having already had their claims for prospective placement at the Carroll School dismissed last quarter, the parents suffered another blow when they lost their claims for retroactive relief this quarter.  Relatedly, the BSEA issued a ruling in another strikingly similar case this quarter, Arlington Public Schools and P.J., ultimately dismissing the parents’ claims for prospective placement and funding at the Carroll School.  Tune into our third quarter 2024 commentary for our full observations on this apparently trending issue.

The remaining rulings this quarter, true to form, considered a wide array of topics, including motions for expedited and accelerated status, the recusal of hearing officers and attorneys, directed verdicts, and the expected discovery-related disputes.  One ruling, Beverly and Seven Hills – Crotched Mountain, is another in a now long line of cases involving the invocation of a student’s stay-put rights when faced with termination from a private school.  Consistent with prior rulings and decisions, the hearing officer ordered the student’s immediate readmittance to Seven Hills, during the pendency of the action.

FISCAL YEAR 2024 BSEA STATISTICS

Before commenting on this quarter’s decisions, we offer an overview of the BSEA statistics for Fiscal Year 2024.

There was a significant jump in rejected IEPs, far exceeding even pre-Covid-19 levels:

Rejected IEPs:

FY 24  –  14,326

FY 23 –  12,560

FY 22 –  11,830

FY 21 –  11,331

FY 20 –  9,442

FY 19 – 11,979

FY 18 – 11,900

The number of hearing requests stabilized over the last few pre-Covid-19 years at around 500, but FY 20 saw a precipitous drop in the number of hearing requests with a further decrease in FY 21. Since then, there has been a steady increase in the number of hearing request, but still well below pre-pandemic levels.

FY 24 –  417

FY 23 – 391

FY22 –  381

FY 21 – 320

FY 20 – 379

FY 19 – 483

FY 18 – 481

Matters going through full hearings resulting in written decisions were consistently around 50 per year until they declined significantly after FY 13.  FY 23 yielded the lowest number of full hearings to date (12) since the early days of the BSEA. That number remained consistent for FY 24. This was attributable to two factors. First, and most significantly, was the number of matters going to settlement conferences and the effectiveness of BSEA Director Reece Erlichman in getting those matters resolved.  Second, was the use of pre-trial motions to resolve matters completely or position them for resolution. Settlement conferences were held in 42 of the cases that were filed for hearing in FY 24, of which 37 were resolved the day of the settlement conference. Although the number of hearing requests filed in FY 24 was higher than FY 23, the number of matters going to full hearings with written decisions was the same:

FY 24 – 12

FY 23 – 12

FY 22 – 14

FY 21 – 24

FY 20 – 19

FY 19 – 19

FY 18 – 13

Of the 12 decisions noted above, Parents fully prevailed in only 1.  Parents had counsel in that one, as did the district. The School Districts fully prevailed in 9. Parents had counsel in none, were represented by an advocate in 2 and were pro se in 7.  The district was represented in all 9.  In the 1 case of mixed relief, parents were pro se and the school district was represented by counsel.  One matter involved and LEA assignment.

The BSEA received 310 requests for facilitated Team meetings, a slight increase from the 298 in FY 23.  Of those 310 requests, the BSEA conducted 138 facilitated IEP Team meetings, a decrease from the 204 conducted during the previous year. Note that 40 requests were declined by parents and 22 were declined by school districts, and 110 requests for facilitated IEP Team meetings had to be declined by the BSEA this year owing to staff unavailability

BSEA mediators conducted 703 mediations in FY 24, a slight decrease from the 715 mediations in FY 23. There were 1,275 requests for mediations, further proof that more resources need to be devoted to the BSEA.  The agreement rate was 81%.

Parents Lose Case for TUITION Reimbursement, Following Prior Dismissal of their Prospective Claims

Arlington Public Schools, BSEA No. 2503543, 30 MSER 453 (Nir, Dec. 16, 2024) concerned a fourth-grade student’s receipt of a free appropriate public education (“FAPE”), under various procedural and substantive theories.  The heart of the matter, however, considered whether the student’s individualized education program (“IEPs”), calling for a full inclusion placement within Arlington, was appropriate, and, if not, whether the parents were therefore entitled to some measure of retroactive relief.

Months prior, and as discussed in our third quarter 2024 commentary, Arlington was successful in obtaining a dismissal (with prejudice) of the parents’ claims for prospective relief, namely, an order for or funding relative to the student’s ongoing placement at the Carroll School, an unapproved private school specializing in educating students with language-based learning disabilities.  Arlington Public Schools, BSEA No. 2503543, 30 MSER 310 (Nir, Sep. 30, 2024).  Thus, this hearing considered only the parents’ claims for retroactive relief—reimbursement for all costs associated with the student’s placement at the Carroll School.

The student, who had diagnoses of Dyslexia and Type One Diabetes (T1D), attended elementary school in Arlington through her third-grade school year.  When the student was in second grade, she was found eligible for special education, on the basis of her reading disability.  She began receiving at least some reading services that spring, following the parents’ rejection of the initial menu of proposed services due to their alleged inadequacy.  The parents also questioned why the student appeared to be receiving services that were either the same or similar to those that she had been receiving pursuant to response to intervention (“RTI”), among the same cohort of students, which still included general education students.  By the end of the school year, however, the student’s IEP Team reported on her significant progress, based on various benchmarks and work samples.  That summer, the student received her T1D diagnosis, and did not participate in extended school year programming, for which she was eligible.

Prior to the start of the student’s third-grade year, Arlington developed a Section 504 Plan, separate from her IEP, in consultation with the family and Boston Children’s Hospital, to accommodate the student’s T1D.  In response to a few instances early in the school year during which the parents had to intervene to address the student’s dangerous blood sugar drops, Arlington provided additional nursing support.  Nevertheless, the parents remained concerned about Arlington’s handling of the student’s T1D, along with the student’s concerns about “dying at school.”

Throughout the student’s third-grade year, her IEP Team reconvened, proposing to increase the student’s services, add a written expression goal, and amend her reading goal.  The parents continued to express concern about the appropriateness of the student’s program, questioning how the proposed inclusion-based services differed from the general education services the student had previously received and opining that the did not believe that her goals were well-matched to third-grade curricula.  While Arlington periodically reported on the student’s significant growth, based on various data-collection measures, the parents did not have any independent expert review of the student’s progress to counter the Team’s reports.  It was not until the tail end of the school year that the parents sought an independent observation of the student’s program and obtained an oral and written language evaluation.  Since these reports were never shared with Arlington at any point, and because neither expert testified at trial, the record lacks detail as to what these reports found and concluded, beyond an apparent recommendation that the student needed a language-based program.  The parents informed Arlington that they would be placing the student at the Carroll School, at which point the Team reconvened, proposed additional evaluations, and, after the next school year had already commenced, again increased the student’s services.

The parents advanced a number of legal theories to support their claims, including, but not limited to, Arlington’s alleged failures to: (1) implement the student’s Section 504 Plan; (2) and to propose IEPs that would enable her to receive a FAPE.  The hearing officer readily disposed of all of them.

First, concerning the parents’ FAPE claim under Section 504, even though the hearing officer credited the parent’s testimony and evidence relative to Arlington’s handling of the student’s T1D, she nevertheless found in favor of Arlington.  Under Section 504, a FAPE denial must be “so significant that it effectively denies the child the benefit of a public education.”  The inconsistent application of a Section 504 Plan, therefore, is not tantamount to a FAPE denial.  Here, despite the mother’s compelling testimony regarding her concerns and certain of the plan’s glitches, the hearing officer determined that the student continued to participate and make progress in her academic and social endeavors.

Second, concerning the parents’ FAPE claim under IDEA, the hearing officer analyzed the IEP in place at the time to determine whether the unilateral Carroll School placement was reasonably calculated to enable her to make progress in light of her circumstances.  The hearing officer was unmoved by the parents’ arguments that the student continued to receive RTI-related instruction with general education students, even after she had been found eligible.  The parents proffered no evidence that the use of such strategies, or the student’s peer grouping, were inconsistent with the student’s IEP.  Instead, the hearing officer credited the student’s service providers, who, through uncontroverted expert testimony, addressed the student’s progress on her IEP goals, as well as objective, district-wide assessment tools and MCAS.  Thus, the hearing officer found in favor of Arlington, denying the parents all retroactive relief.

This case serves to remind parents and their advocates/practitioners that neither Section 504 nor the IDEA require perfection.  Indeed, the hearing officer explained that the parents’ concern for the student’s “development, safety, and progress led her to blur the line between what would be best for student and what was required for FAPE or meaningful educational progress.”  Further, the parents were hard-pressed to meet their evidentiary burden without any expert support for their arguments.  An acrimonious working relationship between the parents and the district does not excuse the parents from sharing relevant information with the Team.  As was the case here, the parents were prohibited from relying on that information in their attempt to later prove their claims.

PARENTS SUCCEED IN OBTAINING STAY-PUT ORDER REQUIRING DISTRICT TO PROVIDE 24/7 SERVICES WITHIN FAMILY HOME

In In Re: Northborough and Southborough Public Schools, BSEA No. 2504230, 30 MSER 431 (Berman, Nov. 29, 2024), an accelerated decision based on the parties’ written submissions, the hearing officer ordered the district to drastically increase its programming to the student, under the doctrine of stay-put.  There, the nineteen-year-old student with significant disabilities, including Autism Spectrum Disorder, Obsessive Compulsive Disorder, and Intellectual Disability, required around-the-clock support in all facets of his life, such as toileting, bathing, safety, social skills, and emotional regulation.  For over six years, the student attended the New England Center for Children (“NECC”) via IEP, providing for his residential placement within the program.  In July 2024, however, NECC terminated his placement, fearing that it was unable to keep him safe.  Neither the parents nor district challenged the termination.  Without another option, the student returned home.

The student’s operative and last agreed-upon IEP, otherwise referred to as his “stay-put IEP,” provided for “24 hours/day (including awake overnight staff) and 7 days/week coverage” and emphasized that “these supports are critical in maintaining [the student’s] safety and ensuring [his] progress.”  Upon the student’s termination from NECC, and pending its search for a new residential placement for the student which spanned more than thirty programs across seventeen states, the district agreed to provide up to fifteen hours per day of home services.  The district also agreed to take over case management, provide certain safety-care training, and increase specialist consultation services.  The parents requested that the district instead rent an apartment for the student and provide twenty-four – not fifteen – hours per day of services, until it could secure him new residential placement.  Litigation ensued.

As a foundational matter, the doctrine of stay-put affords students the right to remain in their “then-current educational placement” during the pendency of a dispute.  Determining what constitutes a student’s “then-current educational placement,” however, is typically far from self-evident.  In cases such as this one, when the stay-put placement becomes unavailable, the BSEA has interpreted the stay-put doctrine “to require school districts to provide a comparable program.”  Determining what constitutes a “comparable program” requires a fact-specific inquiry that considers a range of factors, but generally is one “which matches as closely as possible the setting, the type, and level of service delivery, the degree of mainstream contact, the methodology and teaching approach, the staff-student ratio, the instructional and therapeutic expertise, and the duration of direct and incidental teaching.”

While stay-put analyses are often complicated, we applaud the hearing officer’s ready determination that in this student’s circumstances, comparability required, at a minimum, 24/7 coverage, including awake overnight staffing.  Thus, the district was ordered to increase stay-put programming from fifteen to twenty-four home service hours per day.  The hearing officer declined to order that the district create a program that includes a rental housing arrangement right now but forecasted that it “may not be out of the question at some point in the future.”  Thus, districts should take caution that even their honest, dedicated efforts to secure another placement for a student does not absolve them of the need to provide creative and perhaps expensive stay-put programming in the interim.

THE DISTRICT CONDUCTS AN ADEQUATE MANIFESTATION DETERMINATION REVIEW

Norwood Public Schools, BSEA #2503348, 30 MSER 337 (Nir, Oct. 8, 2024) is a follow up to Norwood Public Schools and Helena, BSEA # 2501731, 30 MSER 256 (Reichbach, August 29, 2024) (commented in full in our 3rd Quarter 2024 Commentary).  That decision demonstrated how extensive the “child find” obligations of a school district are and how they constrain a district’s ability to discipline to a student not yet on an IEP or 504.

On May 29, 2024, Helena was involved in a fight with a peer at school, during which a staff member had her leg broken in two places while trying to break up the fight.  The superintendent reduced Helena’s permanent expulsion for assault to a suspension lasting from May 31, 2024 through the end of Term 1 of the 2024-2025 school year in November 2024. In the earlier ruling, the hearing officer found that the “totality of the circumstances” deemed Norwood to have knowledge that Helena was a child with a disability which obligated Norwood to conduct a manifestation determination before excluding Helena from school for more than ten days. The hearing officer rejected the parent’s request that she conduct the manifestation determination review, instead ordering Norwood to conduct one within five days of the decision. The hearing officer also rejected Norwood’s assertion that it was empowered to remove Helena on an emergency basis pursuant to MGL c. 71 §37H ¾ whereby an assault of a student may result in suspension of up to 90 school days, whereas assault on school staff pursuant to MGL c. 71 §37H may result in long-term suspension or expulsion from school. While the staff member broke her leg in two places while trying to break up the fight, the hearing officer held that while this terrible injury was as a result of the fight, Helena had not “inflicted” it upon the faculty member.  Rather it was incidental to the fight, tantamount to an unintended consequence.  In addition, Helena’s suspension could not have been extended beyond a current school year pursuant to 603 CMR §53.02, “[n]o long term suspension shall extend beyond the end of the school year in which such suspension is imposed.”  There is no exception for matters under MGL c. 71 §37H or MGL c. 71 §37H ¾.  The hearing officer ordered Norwood to return Helena to school immediately and develop a plan to compensate for school days she improperly missed.  In addition, Norwood had to expedite her special education evaluation but would only be obligated to provide services if she were found to be eligible under IDEA or Section 504.

Consistent with the earlier BSEA ruling, on September 6, 2024, Norwood conducted a manifestation determination review meeting (“MDR”) about the May 29, 2024 fight.  Present at the MDR were the parent, school counselor, special education department head, special education teacher, director of special education, attorney for Norwood, assistant director of special education, attorney for the parent, and Helena’s primary care physician. None of Helena’s teachers from the previous year, nor Dr. Weieneth, a private psychologist, Helena or any witnesses to the incident attended the MDR. At the MDR, the Team reviewed the August 2024 Decision, Helena’s disciplinary record, which reflected no prior infractions, “a little” of the student’s academic record, the videos of the incident, as well as a supportive letter and reports by some of Helena’s care providers. The Team discussed the fact that Helena had not taken her

medication on the morning of the incident, as well as the manifestations of ADHD Predominately Inattentive Type. The student’s school file contained no information relative to Student having any history of trauma.  The MDR lasted ninety minutes, which according to school staff, was one of the longest MDRs they had ever attended.

Much of the student-side evidence at the MDR centered on the fact that Helena did not take her ADHD medication the morning of the incident and how that, coupled with her past trauma history, was the cause of Helena’s behavior. The MDR Team concluded that the conduct subject to discipline was not a manifestation of Helena’s disability.  The hearing officer concluded that Helena had a full and fair opportunity to make her case at the MDR.

Dr. Weieneth evaluated Helena after the MDR and testified at the BSEA hearing.  In her opinion, Helena’s ADHD, particularly given her trauma history, inhibited Helena’s behavior throughout the entirety of the incident on May 29, 2024 until she was able to calm down. Her conduct on May 29, 2024 was an impulsive reaction resulting from her ADHD. According to Dr. Weieneth, Helena was experiencing significant stress in ninth grade, and responded impulsively due to a “major provocation.” The “provocation” was a peer coming up to Helena’s table and saying something that Helena found provocative. Her rising from the table and following the peer were all part of one impulsive action according to Dr. Weieneth. In other words, Helen’s ADHD “led to an impulsive decision” that then “brought her down this path” where she could

not inhibit her response, or to stop and think. That she did not have such behaviors in the past did not negate the relationship between her ADHD and the conduct. Rather, Dr. Weineneth opined that Helena suffered a “total frontal lobe shutdown” and the incident was the result of a “buildup of stressors and a severe provocation.” Even when told to stop by staff, Helena continued to be in fight or flight mode, and she could not calm down until she felt safe. That

Helena was un-medicated on the day of the incident made her vulnerabilities even more pronounced.

The hearing officer failed to overturn the MDR Team’s decision.  Concerning the composition of the MDR Team, the hearing officer cited 34 CFR 300.530(e), which provides that the MDR must be conducted by the district, the parent, and relevant members of the IEP team, as determined by the parent and the district. In determining who the “relevant members of the IEP team” are, at least two BSEA Hearing Officers have found that the MDR Team should comprise individuals who possess “personal knowledge” or “first-hand information” of the student.  Here, only one member of the MDR Team here had personal knowledge of Helena  However, the parent, who along with her attorney had significant input into the MDR and exercised her right to have other people present at the MDR, did not seek to invite additional people, such as Helena’s teachers from her previous year, to the MDR.  Also, while attendance of a general education teacher at an IEP Team meeting is mandatory, there is no specific attendance mandates beyond “relevant members of the IEP Team” for an MDR.  In addition, since the conduct did not occur in the classroom, any insufficiency in the composition of the MDR Team would be harmless error since there was no evidence that others would have provided information that would have changed the decision of the MDR Team.

Concerning the basis of their decision, the hearing officer found that the MDR Team considered the parent’s expert opinions, Helena’s disability and past history.  The opinion of Dr. Weieneth could not have been considered since it was rendered after the MDR.  The hearing officer was convinced that the MDR Team complied with its obligation to review all available relevant information that was available at the time.  In reviewing the determination, the hearing officer placed no weight on the opinion of Dr. Weieneth, since it was not available to the Team.  Based on the information available to the MDR Team, the hearing officer found that it properly concluded that Helena’s disability of ADHD Predominantly Inattentive Type, even as it was compounded by past trauma, did not “cause or ha[ve] a direct and substantial relationship”

to her disability.  The “global” view that ADHD Inattentive Type may impact impulse control and inhibition is inadequate as there must have been established a specific link to this specific student and the specific May 29. 2024 incident.  There was no evidence that Helena’s past conduct showed similar manifestations and indeed when she was angry and dysregulated in the past she would bite her own arm, not aggress against others. Regarding the fact that Helena did not take Concerta the morning of the incident, her dose was sub-therapeutic and her behavior when taking it would not have been significantly different.  The ten second or so delay between the provocation and Helena’s aggression also undercut the notion of an impulsive action. The conclusion of the MDR Team that Helena’s conduct was not a manifestation of her disability was proper. However, as was held in the earlier hearing, the suspension imposed during the 2023-2024 school year could not extend into the 2024-2025 school year and Helena was still ordered to be returned to school immediately.

THE DISTRICT’S TRANSITION SERVICES PROVIDED A FAPE BUT THE DISTRICT VIOLATED THE STUDENT’S STAY-PUT RIGHTS INVOKED BY REFUSING HIS DIPLOMA

Boston Public Schools, BSEA #2403492, 30 MSER 314 (Figueroa, October 5, 2024) involved the claim that Boston (BPS) did not provide a FAPE and appropriate transition services for the student and therefore he could not be graduated, and, further, that BPS violated the student’s stay-put rights after challenging the graduation date.

The student was twenty-one years old and carried diagnoses of ASD and ADHD which significantly impacted his social interactions and verbal and non-verbal communication. In seventh and ninth grades, he tested into Boston’s exam schools.  By June 2021, the student had passed all the requisite MCAS exams. He participated in various transition service opportunities during the 2021-2022 school year. The Team determined that the student was ready to graduate in June 2022. The parent rejected that proposed graduation date alleging that he was not provided a FAPE during the 2022-2023 school year.

The hearing officer determined that there was no dispute that the student had met local graduation requirements by June 2021 by completing all required coursework and passing the MCAS.   Regarding whether the student had received a FAPE, the hearing officer detailed the extensive array of transition services provided to the student and, therefore, held that BPS had provided a FAPE. During the period between January of 2021 and April of 2023, Boston convened numerous Team meetings to address newly acquired information regarding the student’s progress and interests. The transition evaluations considered during the Team meetings in November of 2022 and April of 2023 resulted in the proposal of IEPs that were aligned with the recommendations of the evaluators and with the student’s vision statement that he wanted to graduate from high school, attend college, and have a career in animation/IT. Boston also made timely 688 referrals to the Massachusetts Rehabilitation Transition Pathway and sought the participation of a DDS caseworker (Student’s agency for adult services) during Team meetings. The student was found eligible to receive DDS services in 2022 and funds had been allocated for him to receive such services when he graduated from high school.  BPS coordinated and offered the student participation in multiple activities involving career exploration, college campus navigation, job readiness, job coaching, task completion, appropriate workplace communication, work stamina, development of soft skills, behavior management, self-advocacy, hygiene, and finances.

The IEP and Transition Plan offered Student a dual enrollment program through which he would attend Boston Community Leadership Academy; take two classes per semester at Bunker Hill Community College; and participate in a range of transition services and experiences. The hearing officer found the evidence convincing that as of June 2023, in addition to having

passed all of his MCAS assessments and high school graduation courses two years prior, the student was ready to transition into adult living, including pursuing his goal of attending college.

None of this would have been achievable had the program, placements, internships, and opportunities offered by Boston not been appropriate.

Concerning the issue of procedural violations and compensatory services, those relating to the purported failure of BPS to conduct evaluations and consider assessments were not found actionable since by the time BPS actually attempted to graduate Student in 2023, it had offered him extensive services to address his areas of deficits, taking into account the student’s vision. In addition, it had conducted an in-district transition assessment, and funded an independent transition assessment. While the parent was correct that Boston should have conducted the student’s transition assessments in December of 2021 as opposed to the late summer of 2022, this delay did not deprive the student of a FAPE as he continued to receive appropriate services

uniquely designed to help him transition into adult life.  It was simply a case of “no harm, no foul.”  As always, in assessing the viability of a claim based upon a district’s delays or procedural violations, it is essential to take the measure of what damage, if any, has been visited upon the student as a result.

Regarding stay-put, it is well-established that graduation constitutes a change in

placement for IDEA eligible students. As a result, this change of placement is subject to procedural protections and written notice. 34 CFR §300.102(a)(3)(iii) and (iv). The proposed graduation date must be reflected in the IEP to satisfy the prior notice requirement of the regulations. 34 CFR §300.102(a)(3)(iii). Here, the IEPs covering the periods from January 20, 2022 to January 20, 2023 and the IEP for the period from April 24, 2023 to June 23, 2023 listed the student’s graduation as January 2023 and later June 2023. The parent rejected the IEP in May of 2023, after receiving the IEP proposing to graduate Student in June of 2023, alleging that Boston had failed to offer the student a FAPE. The parent also requested that Boston fund the North Shore Educational Consortium program at Salem State University (“SOAR”) program for the student. While stay-put was properly invoked, when the student went to BPS on the first day of school for the 2023- 2024 school year, he was turned away. Pursuant to settled law as well as DESE’s Administrative Advisory SPED 2018-2, Secondary Transition Services and Graduation with a High School Diploma, BPS was obligated to offer Student dual enrollment services consistent with the student’s prior IEP and Transition Plan. Unlike the other procedural violation, this one was substantial and had to be addressed. BPS was ordered to refund the parent for her out-of-pocket expenses associated with the student’s courses at Bunker Hill Community College

during the 2023-2024 school year and transportation.  However, there was no basis for funding SOAR.

A NOTE OF GRATITUDE ABOUT STEVE LILLY-WEBER

On behalf of our community, we express our deep gratitude for the work of Steve Lilly-Weber, who retired at the end of 2024.  For two decades, Steve served as a mediator with the BSEA. Over that time period, he was invaluable in assisting thousands of families resolve disputes with their school districts.  Steve’s manner was always gentle but forceful and highly effective.  He was dedicated to his craft, and without exception demonstrated his integrity and neutrality.  His colleagues have noted how supportive of, and generous toward them that he always was.  Thank you, Steve.  We are all sad to see you retire but are so very grateful for all you have done.