Daniel T.S. Heffernan, Esq.

Kotin, Crabtree & Strong, LLP

Daniel T.S. Heffernan is a lawyer at the Newton law firm of Kotin, Crabtree and Strong, LLP, a general practice firm.  He and his colleagues, Robert K. Crabtree, Eileen M. Hagerty, Marie F. Mercier, Alicia M.P. Warren and Eliza L.M. Presson concentrate their practices in special education law, among other areas.

INTRODUCTION

            The BSEA began the new year with a busy quarter, issuing three decisions and fourteen rulings.  We comment here on two of those decisions.  Pittsfield is further proof that the BSEA can provide a swift and thorough review of school discipline matters, remarkably issuing the ruling on the same day as the hearing.  Franklin Public Schools, Acton-Boxborough Regional School District, and Carly provides another in-depth analysis of what experts a hearing officer will and will not credit.  Unfortunately for the parents, this resulted in the denial of the claim for reimbursement of a unilateral placement.

Three of the rulings relate to joinder motions, with the hearing officers following well established precedent on whether to allow joinder of various state agencies, including the Department of Early and Secondary Education (DESE).  Two rulings relate to Independent Education Evaluations.  The remaining decision, Lincoln Public Schools, relates to the efforts of the district to find an alternative program for the student, having sent out twenty-nine referral packets to eighteen different programs and a finding that several of them that accepted the student would provide a FAPE despite the parent’s rejection of them.

PARENT OBTAIN SWIFT RELIEF AT THE BSEA IN OVERTURNING A FINDING OF THE DISTRICT’S MANIFESTATION DETERMINATION

Pittsfield Public Schools, BSEA No. 2505764, 31 MSER 1 (Nir, January 3, 2025) presents another example of how parents can obtain swift review at the BSEA of a district’s discipline process.  The parent here filed an expedited hearing request seeking to reverse and vacate a manifestation determination reached by the student’s IEP team on December 5, 2024, following a disciplinary incident that occurred on November 19, 2024. The hearing officer issued a decision on the very same day that the hearing was held, January 3, 2025.

The student was a tenth-grade student at Pittsfield High School who had been diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) and Oppositional Defiance Disorder (ODD). The student had an IEP as well as a Behavior Intervention Plan (BIP), and it was acknowledged that the student could be disrespectful.  On November 19, 2024 the student repeatedly stated that a peer in their Spanish class was “cheating because she’s Mexican.”  The district issued a notice that the student may be suspended, and in response, the parent kept the student home for the next two school days.  The dean of students subsequently emailed the parent that he had tried calling her several times the previous week about scheduling a suspension hearing for alleged harassment. Since she had not responded, the school would proceed with a short-term suspension hearing on Monday, December 2, 2024. In the meantime, he wrote, the student should attend school. If, following the hearing, a suspension was determined to be appropriate, then the school would hold a Manifestation Determination Review (“MDR”) meeting before the suspension went into effect.

On November 26, 2024, Parent responded, stating, “I do not agree with the BIP. I will not be attending the suspension hearing nor will I be attending the MDR hearing either.”  On December 3, 2024, the principal conducted a short-term suspension hearing without the parent attending and determined that student would serve an out-of-school suspension for a period of four days and a one-day in-school suspension to begin following a manifestation hearing.

On December 5, 2024, the MDR hearing was held, and the Team determined that the behavior was not a manifestation of the student’s disability.  After the parent filed for an expedited hearing, the district reversed its decision, deleted the MDR finding and proposed scheduling a Team meeting to consider compensatory services for the days the student missed as well to discuss revising the IEP based upon parent’s concerns.  The parent insisted the BSEA proceedings go forward, and despite the fact that the district had already conceded that the MDR determination was not proper, the hearing officer conducted the hearing. The hearing officer concluded that the MDR determination was improper. She ordered the Team to reconvene, if they had not already done so, to assess the compensatory services to which the student was entitled for the five days the parent kept him home under the mistaken belief that he had been suspended. She further ordered that these compensatory services must be provided to Student before the end of the 2024-2025 school year.

PARENTS LOSE THE BATTLE OF THE EXPERTS AND THEIR CLAIM FOR REIMBURSEMENT FOR THEIR UNILATERAL PLACMENT

Franklin Public Schools, Acton-Boxborough Regional School District, and Carly, BSEA No. 2412891 (Reichbach, March 24, 2025) involved a claim for reimbursement of the cost of a unilateral placement at The Carroll School for the 2023-2024 school year, the student’s third grade year. The in-depth analysis of the hearing officer of the opinions of multiple experts for both sides provides invaluable insight into what hearing officers find persuasive and what they do not. Procedurally, the parents filed against Franklin, which then successfully moved to join Acton-Boxborough, because the parents bought a home in Acton in November 2023.

The dispute turned on the validity of a dyslexia diagnosis first given to the student by parents’ private neuropsychologist, Dr. Nathan Doty, in an evaluation conducted in October 2021, early in the student’s first-grade year and prior to the student being on an IEP. The report of this evaluation, though, was not provided to Franklin until the summer 2022.

In his report, Dr. Doty calculated the student’s overall intelligence based solely on nonverbal measures, excluding verbally-based subtests such as vocabulary, similarities, and auditory working memory—a method the hearing officer deemed “unorthodox.” Given what he characterized as the unusual gap between the student’s verbal performance and her intellect, Dr. Doty opined this approach, “should be considered the best representation of her underlying potential.”  He concluded, based on the nonverbal index (NVI) score, that the student had “superior intellect” and hypothesized that her merely average range scores on academic and phonological measures were explained by the student’s “superior nonverbal intelligence” that was masking her underlying dyslexia.

While it is not atypical for a neuropsychologist to fail to report a Full Scale Intelligence Quotient (FSIQ) as a result of uneven test scores, Dr. Doty acknowledged when testifying at hearing that he did not explicitly explain in his report that his calculation of the student’s intellectual potential was based only on the NVI, and that his decision to calculate and describe the student’s intellectual potential using her NVI scores rather than a FSIQ was a “subjective judgment,” but one, he testified, supported by the test publisher’s guidelines.

At hearing, school psychologists at both Franklin and Acton-Boxborough testified to their opinion that this was not an appropriate way to calculate the student’s cognitive abilities or her disabilities.  Jennifer Curry, Franklin’s school psychologist testified that the only instances where it would be appropriate to use the nonverbal index to determine intellectual ability and/or a learning disability would be for a student who is learning English, hearing impaired, or nonverbal. Moreover, unlike Dr. Doty, Ms. Curry testified that she would have reported the student’s FSIQ, noting any discrepancies within the indices.

Based on his October 2021 testing, Dr. Doty diagnosed the student with a Specific Learning Disorder (SLD) with Impairments in Reading, Math, and Spelling, Dyslexia, Dyscalculia, and an Unspecified Communication Disorder. He recommended that she receive various pull-out services, but, notably, he did not recommend a substantially separate language-based program.  When the Team convened to review Dr. Doty’s evaluation in September 2022, Franklin proposed an initial evaluation for the student and subsequently found the student eligible for an IEP. As part of the eligibility determination, the Team acknowledged that Dr. Doty had diagnosed the student with dyslexia, but Franklin did not view it as a disabling condition in the school setting. Specifically, Franklin disagreed with Dr. Doty’s findings that the student had a Specific Learning Disability in Reading and Spelling, as their evaluations did not reveal a discrepancy between the student’s overall intellectual abilities and her academic achievement and her cognitive scores aligned with her reading performance on both standardized tests and within the classroom. The student’s second grade special education teacher, Nicole Kelly, conducted the student’s academic achievement testing over nine separate sessions in fall 2022. Based on the academic achievement testing, as well as her work with the student, Ms. Kelly concluded that neither dyslexia nor any other component of reading was a concern. Asked at hearing to reflect on the difference between these scores and those in Dr. Doty’s evaluations, Ms. Kelly noted that given the COVID-19 pandemic, at the time Dr. Doty evaluated the student, she had only been learning in-person, full-time, for two months, and much growth had occurred in her skills in the intervening time. Given the student’s accurate and fluent word recognition, spelling, decoding, comprehension, and vocabulary, as evidenced by her test scores and classroom performance, she would not have met the criteria for dyslexia outlined in the Massachusetts Dyslexia Guidance.

The student’s initial IEP for the period from November 9, 2022 to November 8, 2023 listed a primary communication disability and a secondary specific learning disability in math. It proposed a full inclusion placement with goals in the areas of communication and math. Speech and language and math services were proposed in both the B and C grids. On or about November 22, 2022, the parents partially rejected the initial 2022-2023 IEP “to the extent that it does not recognize [the student’s] primary medically diagnosed [d]yslexia nor does it provide reading intervention at a level of support needed for [her] to make effective progress.” They consented to the proposed placement.

In December 2022 the parents obtained an audiology evaluation by Dr. Radosi at Boston Children’s Hospital and a speech language evaluation from Carolyn Brinkert, M.S., CCC-SLP, of the Integrated Center for Child Development (ICCD), in January 2023.  While Dr. Radosi did not diagnose the student with a central auditory processing disorder, he made recommendations for programming consistent with that diagnosis.  Ms. Brinkert agreed with Dr. Doty that the student was not demonstrating language skills commensurate with her intellectual potential and made recommendations consistent with Dr. Doty’s. When the Team reconvened on both reports in March 2023, they noted that the student, who had only been receiving IEP services for four months, was making solid progress in multiple areas, including math, speech/language and reading.  The district had retained an outside audiologist, Dr. Nichols, to review Dr. Radosi’s evaluation.  While disagreeing with aspects of that evaluation, the Team incorporated many of Dr. Radosi’s recommendations, such as more tailoring of the FM system already in place for the student.

The parents unilaterally placed the student at Carroll for the 2023-2024 school year, her third-grade year. Dr. Doty then reevaluated her in June 2024. In his 2024 evaluation, he maintained the student’s dyslexia diagnosis but again did not recommend placement in a substantially separate program. He opined that she had demonstrated a pattern of clear and meaningful academic progress in the three years since his prior evaluation and attributed that progress to her programming at Carroll. At the hearing, though, he acknowledged that no testing had occurred to enable him to isolate the progress attributable to the year at Carroll. Additionally, at the hearing and seemingly in conflict with his written evaluation, he testified that she was displaying more significant language-based deficiencies in 2024 than in 2021, and was he unable to reconcile his conflicting testimony regarding whether the student’s language-based deficiencies had been remediated or had become more significant between his two evaluations.

The hearing officer found for the district and denied the parents’ claim for reimbursement.  Several factors were key in her decision.  First, establishing that the student is academically years behind is challenging for any matter involving an early elementary student. In addition, as is often the case with young students, it is hard to make a case for lack of effective progress when the student was only receiving IEP services for a short period before the unilateral placement.  Here, there was evidence from multiple creditable sources that the student was making good progress over the short period of time she was on an IEP in Franklin.

Typically, parents gain a tactical advantage when they unilaterally place because if the student makes significant strides in the unilateral placement, that track record helps demonstrate that the unilateral programming is what the student needed.  However, to establish that one must have a benchmark at the beginning of the unilateral placement and at an appropriate later time to isolate the progress attributable to the unilateral placement.  Here, Dr. Doty evaluated the student in October 2021, almost two years before her unilateral placement began.  It was therefore quite difficult for him to establish what progress was attributable to Carroll and what was attributable to the student’s last two years in Franklin, including the few months the student was on an IEP.  It would have been potentially more helpful to their case if the parents had Dr. Doty evaluate the student close to the beginning of the 2023-2024 school year at Carroll.

Although only a small fraction of neuropsychological evaluations make their way into BSEA proceedings, one should be mindful that the audience for such reports is not limited to educators but to hearing officers who are lawyers applying a legal standard.  Here, the hearing officer found Dr. Doty’s methodology for determining the student’s cognitive abilities to be “unorthodox”.  When an expert veers from the norm, they need to detail the well-founded rationale for that in the report.  As Dr. Doty’s opinion that the student had a superior intellect was a crucial underpinning to his dyslexia diagnosis, he needed to lay out the case for that more fully in his written report.  While it is not uncommon for a neuropsychologists to not provide a FSIQ for a student with significantly discrepant scores, the hearing officer here believed it was preferable for that score to have been calculated, accompanied by a detailed explanation of why it was not a valid measure.

Other factors also undercut the parents’ claims.  The almost one year delay in between Dr. Doty’s 2021 testing and the submission of his report to the Team rendered much of it stale and possibly delayed by almost a full school year the offering and implementation of IEP services.  An earlier provision of those services would have not only benefitted the student but also provided much more time before the unilateral placement to establish if the in-district program was appropriate.  Dr. Doty also failed or was unable to speak with any of the student’s Franklin teachers or service providers or review classroom assessments or norm-referenced or criterion-referenced measures in reading or math.

The hearing officer credited the reports and testimony of the districts’ witnesses and noted that the districts considered the various outside evaluations and did not stand pat on their programming but offered additional services and accommodations.  In the end, the hearing officer agreed with the districts that a substantially separate language based program would be unnecessarily restrictive for the student.