Commentary on Massachusetts Special Education Decisions: 2nd Quarter, 2013, by Daniel T.S. Heffernan:
September 26, 2013
The following article first appeared as a quarterly commentary in Massachusetts Special Education Reporter (MSER), a publication focusing on the decisions of the Massachusetts Bureau of Special Education Appeals.
This quarter’s dozen decisions include many significant ones that continue the evolution of several principles in special education law. For example, Mansfield Public Schools, BSEA #1307030, 19 MSER 100 (2013), applied both longstanding and recent legislation in delineating the right of parents to have their evaluator conduct an adequate observation of the school district’s program. ABC Public Schools, BSEA # 1303743, 19 MSER 91 (2013) details the circumstances that allow a school district to override parents’ refusal to consent to certain evaluations and demonstrates how limited are the rights of parents to shape those evaluations or to force a district to conduct additional evaluations. Newton School District, Southborough School District and New England Center for Children, BSEA #1306409 and 1306414, 19 MSER 102, and Norton Public Schools, BSEA #1306264, 19 MSER 134 (2013) both involve unsuccessful requests for recusal of hearing officers and defines the necessary justification for recusal and demonstrates the conscientiousness of the BSEA hearing officers in considering such motions. Another attempt to join a state agency, this time as a party in the original hearing request, is addressed in Concord-Carlisle School District BSEA #1307146, 19 MSER 104 (2013). Mercy Centre & Brockton Public Schools, BSEA #1304173, 19 MSER 142 (2013) and Brockton Public Schools, BSEA #1301082, 19 MSER 121 (2013) address the obligations of public school districts when students are terminated from private school programs. There are also two transition cases, Nauset Regional School District and Massachusetts Department of Developmental Services, BSEA #1300562, 19 MSER 152 (2013), and Quincy Public Schools, BSEA #1301349, 19 MSER 166 (2013), the latter relating to a student who had already turned 22. Boston Public Schools, BSEA #1308609, 19 MSER 115 (2013), involved a request for an expedited hearing based upon the purported threat to the safety and health of the student. The issue of ordering funding of a non-Chapter 766 approved school is examined in Westport Community Schools and Jed, BSEA #1302922, 19 MSER 106 (2013).
The Scope of Parents’ Expert’s Observation
The hearing officer in In Re: Mansfield Public Schools, BSEA #1307030, 19 MSER 100 (2013) (Crane), ruled on the parents’ motion to compel a full continuous day observation of the student. Parents’ rights to have an adequate observation of a school district’s program have been the subject of legislation and much case law in recent years. In 2009, Massachusetts enacted a law to strengthen the right of parents and their evaluators to observe any current or proposed program for their child. Massachusetts law (MGL ch. 71B, §3; 603 CMR 28.07(1)(a)(3)) accords parents, and by extension, their evaluators or consultants, a reasonable opportunity to observe their child’s program or proposed program. The rationale for the law, as delineated in the first sentence of the statute is: “To insure that parents can participate fully and effectively with school personnel in the consideration and development of appropriate educational programs for their child” There are no rules delineating the specifics of a “reasonable” observation. Access must be timely and sufficient to allow parents or their designee a meaningful opportunity to assess the program. Both academic and non-academic portions of a child’s program must be made available for observation. The law makes clear that schools may not restrict or place conditions on observations unless those are necessary to: (1) ensure the safety of students in the program; (2) ensure the integrity of the program while under observation; and, (3) protect the students in the program from disclosure of confidential and personally identifiable information. MGL. c. 71B, §3; Technical Assistance Advisory SPED 2009-2: Observation of Educational Programs by Parents and Their Designees for Evaluation Purposes. BSEA case law has established that observers must be accorded the opportunity to speak with teachers and other staff about the program. Northbridge Public Schools, BSEA #09-2533, 14 MSER 348 (2008) (The hearing officer castigated the school district for instructing staff not to speak about the student or his program with the parents’ expert).
It is well established how crucial a first-hand look is in determining how a student is actually doing in a program, and for providing suggestions for changes to the student’s program. To offer well-founded challenges to the school’s program, it is essential that parents’ expert has seen the actual program. Parents’ legal challenges to a school district program will falter without such an observation. Amherst-Pelham, 13 MSER 160 (2007); North Adams and Chloe, 12 MSER 238 (2007) (hearing officer gave “no weight” to parents’ expert because he did not observe the student).
In the instant case, Mansfield Public Schools, BSEA #1307030, 19 MSER 100 (2013) (Crane), Mansfield did not object to an observation of all aspects of the student’s school day. However, it did object to the entire observation occurring in one day. The district wanted to have one particular staff person, the school psychologist, accompany the parents’ observer and having that staff person carve out an entire day for such an observation was too burdensome. The hearing officer rejected this rationale for two reasons. First, the district did not show why others could not have accompanied the parents’ observer. Secondly, and most significantly, the district’s objection did not fall under the three recognized bases for restricting access of the parents’ observer which are cited above. Therefore, the district was ordered to allow the parents’ expert to observe the student over a single entire day.
Parents’ Input Into the Scope and Type of School District Evaluations
ABC Public Schools, BSEA #1303743, 19 MSER 91 (2013) (Crane), addresses whether the public school may, without parents’ consent, conduct certain evaluations and whether they must conduct other evaluations requested by the parents. The decision addresses a situation that parents often find extremely frustrating and nonsensical: when the parents have privately obtained comprehensive evaluations by highly qualified professionals, why must they allow the district to conduct their own evaluations? The parents here also sought to control the scope of the evaluations. There were significant procedural skirmishes after the district filed the hearing request, including counterclaims, motions to amend the hearing request and a motion to intervene into the BSEA proceedings by the private school. However, when the procedural dust settled, what remained were fairly discrete disputes: whether the public school could conduct a comprehensive psychological evaluation, including IQ testing and a functional behavioral assessment (“FBA”); must the public school conduct the educational, occupational and speech/language assessments requested by the parents; and, what limitations could the parents impose upon the school district’s evaluations?
The student was a thirteen year old 6th grader who from shortly before the hearing was not attending any educational placement. He has high functioning autism and had had a number of extensive private evaluations. Pursuant to a March 2011 settlement agreement, the student was placed at a private day school. A standard clause present in this settlement agreement, the significance of which came to the fore later, provided that if the student was not to continue in the private placement, the district would have the right to evaluate the student and develop a new IEP. In September 2012, parents notified the district that the private school was no longer a “good fit” and the parents had begun searching for an alternative placement. In response, the school district sought parents’ consent for a comprehensive evaluation. The parents refused to consent.
603 CMR 28.08 empowers districts to institute a hearing to request an override of the parent’s refusal to consent to an evaluation. See also, 34 CFR 300.300(c) for a similar federal provision. There was no dispute that the parents had obtained comprehensive evaluations from highly qualified experts. Regardless, the district could not be forced to accept those private evaluations. Districts have a right to conduct their own evaluations. “The courts have left little doubt that in the instant dispute, [the public school district] must be allowed to conduct its own evaluations unless Parents choose to forfeit their right to receive all special educations services for Student.” The parents also objected to the administration of IQ tests. While many parents find that an IQ number is an inaccurate measure of their child’s abilities and acts as a label that is often accorded too much significance, the hearing officer noted that parents are not entitled to control the conduct of the evaluation, including what test instruments are employed. The districts have great discretion in determining the design of the evaluation, the test instruments to be employed, the location, and who will conduct the evaluations. Specifically, the district demonstrated that an IQ test was important in helping determine an appropriate prospective placement for the student. Concerning the FBA, qualified staff from the student’s former private school testified that an FBA would be helpful.
The parents requested other evaluations, but did not show why the other evaluations were necessary. The school’s right to conduct evaluations is not unfettered, however. Here, the district could not override the parents’ objection to an OT evaluation since the district had not provided OT services in the past and did not identify motor skills as a suspected area of disability. Parents, of course, have a right to conduct their own evaluations.
Parents Seek to Involve DMH from the Inception of the Hearing Request
Tighter budgets and infighting among state agencies over who must provide services for school aged children has brought an increase in efforts to join state agencies to BSEA proceedings. The typical mechanism for bringing a state agency into the BSEA proceedings is through a motion to join after the hearing request has been filed. However, the parents in Concord-Carlisle School District BSEA #1307146, 19 MSER 104 (2013) (Crane), named DMH as a party to their hearing request. DMH moved, with opposition from the parents as well as the school district, to be dismissed from the action.
The student was a 16 year old girl with significant emotional deficits, major depressive disorder, anxiety disorder, and an eating disorder who had been cutting herself. She lasted one day in the district’s own therapeutic program (the “Alt” program) and was hospitalized in response to her self injurious behaviors. The student underwent an extended evaluation as a residential student at Germaine Lawrence School in Arlington, Massachusetts. At the conclusion of that evaluation, the district again proposed the Alt program.
DMH had found the student eligible and undertook ultimately unsuccessful negotiations with the district to cost share a residential placement. The parents unilaterally placed the student at the New Haven School in Utah.
The parents filed their hearing request against DMH and the district, seeking reimbursement and prospective placement, seeking DMH funding of the residential portion of a program if the district was held not responsible for that component.
DMH’s made three arguments supporting its motion to dismiss: (1) it could only be brought into the proceedings through a motion to join; (2) joinder was premature and should only occur after the hearing officer determined that a residential placement was necessary; and, (3) the proper forum for any dispute about DMH services was DMH’s own administrative process. In rejecting these arguments, the hearing officer noted that the BSEA was authorized to assert jurisdiction in appropriate situations over other state agencies pursuant to MGL c. 71B, §3 and 603 CMR 28.08(3). That law empowers hearing officers to join such agencies if services from those agencies may be necessary to provide “complete relief” to the student. Joinder is appropriate in situations where the student will only be able to access or benefit from the school district’s special education program if services over and above those that are the responsibility of the school district need be provided by the human services agency. However, the BSEA may only act in accordance with that human services agency’s own rules, regulations and policies. Nothing in the applicable regulations precludes joinder in the original filing. In response, the state agency can, as DMH did here, file a motion to dismiss. Secondly, the overarching mandate of MGL c.71B, §3 is to ensure that a single agency, the BSEA, could be empowered to determine all necessary services for a child in one proceeding. The BSEA was designated as the agency to ensure that appropriate, coordinated and consistent services be provided students. The hearing officer denied DMH’s motion to dismiss and deferred the determination of DMH’s responsibility for services to a full evidentiary hearing.
Trying for a Different Hearing Officer Through Motions to Recuse
There has been a noticeable spike in motions to recuse hearing officers assigned to a particular matter. While the right to seek recusal is an important and well established one, it is important to know well the factual and legal requirements for such recusal so as to not waste everyone’s time and resources in responding to unfounded requests. In our experience, the BSEA hearing officers are keenly aware of any possible cause for recusal and will do so of their own volition if there is any credible basis for it. Newton School District, Southborough School District and New England Center for Children, BSEA #1306409 and 1306414, 19 MSER 102 (2013) (Crane), and Norton Public Schools, BSEA #1306264, 19 MSER 134 (2013) (Byrne), provide a good overview of the two-part standard for recusal and demonstrates the conscientiousness of the BSEA hearing officers in examining their ability to be impartial. The first requires the decision maker to examine her conscience to determine whether she could preside over the matter without bias. Second, the hearing officer must determine whether the moving party has a reasonable basis, supported by facts, for their concern over her impartiality. To establish a valid case for recusal, the moving party must identify facts that would create a reasonable question in the mind of a well-informed person about the ability of the decision maker to be impartial. Massachusetts and federal standards are essentially “appearance” standards, meaning recusal should occur if there is a reasonable appearance of bias. The basis of the recusal motion in Newton School District, Southborough School District and New England Center for Children, BSEA #1306409 and 1306414, 19 MSER 102 (2013) (Crane), was conduct that occurred fifteen years before the hearing. In 1998-1999, the hearing officer was a practicing attorney and the attorney for Southborough School District was a BSEA hearing officer. The current hearing officer inquired about a position as a hearing officer and asked for a reference at that time from Southborough’s current counsel. Since then, the only contact between the two was within the current hearing officer’s role as a BSEA hearing officer. The basis for recusal in Norton Public Schools, BSEA #1306264, 19 MSER 134 (2013) (Byrne), was that the advocate representing the parents had received an adverse ruling in another matter brought by the same advocate and involving the same hearing officer. The earlier decision involved a different student, different family, different school district, different school counsel, and different substantive issues. In both matters, the hearing officer engaged in an in-depth examination of the basis for recusal and properly denied both requests.
Interestingly, the hearing officer did agree to request a reassignment of the case to a different hearing officer. The hearing officer simultaneously had two Norton cases pending before her that involved the same advocate as well as similar student profiles, proposed programs, and requests for relief. The hearing officer recognized that each set of parents deserves a “fresh ear, uncontaminated by arguments made or facts found in the other matter.” We applaud the hearing officer’s conscientiousness in this unusual coincidence.
A Serious Situation Acknowledged, but the Specific Relief Sought Not Allowed
The parents filed an expedited hearing request seeking immediate out of district placement in Boston Public Schools, BSEA #1308609, 19 MSER 115 (2013) (Crane) because of a health and safety threat to the student, where it was acknowledged that the student was being allowed to eat food off the floor and from garbage at school. The BSEA granted expedited status but bifurcated the proceedings. An immediate hearing was held on the issue of whether the student’s health and safety were threatened and what immediate measures Boston might be required to take. The issue of the ultimate placement for the student was deferred.
The student is a 10 year old girl with autism spectrum disorder, global developmental delays, and Rett Syndrome. In part, these manifested in her substantial difficulty in acquiring basic academic and daily living skills. She attended a substantially separate program at Boston’s Jackson Mann School. The student was observed on multiple occasions stealing food, flopping and engaging in aggressions. Her teacher acknowledged that she had made no progress in self-regulation. Most concerning was that she would, on one or two occasions each day, take and consume food from garbage bins and off the floor. The school admitted that they were aware of this but did not try to stop it since it was too difficult to take food away from the student. School personnel admitted that they had run out of ideas on how to control this behavior and the hearing officer held that things could not continue in the same manner.
The parents sought an immediate outplacement. However, they failed to identify any particular program or establish how an outplacement would effectively address the student’s dangerous behaviors. The parent also failed to establish that Boston was incapable of providing or developing an appropriate program for the student.
The hearing officer recognized the immediate need to keep the student safe. The hearing officer provided no guidance as to what should be done. Instead, he tasked Boston to develop different approaches and provide weekly reports to the hearing officer on what was being done and the effect. The hearing officer also recognized the longer term issue of addressing the student’s behavior, since the longer the unsafe behavior continued, the more entrenched and therefore more difficult it would be to ameliorate. Boston was ordered to create or find an appropriate program.
The Obligations of a Private Placement and the School District When Termination of the Student is Sought
The hearing in Mercy Centre & Brockton Public Schools, BSEA #1304173, 19 MSER 142 (2013) (Putney-Yaceshyn) was conducted on an expedited basis due to the fact that the student had been at home and without a placement for several months. The student was 11 years old at the time of the hearing and has autism and significant impairments. She would bolt, flop and aggress towards others. The student had been terminated from another private placement and remained at home for several months until Brockton filed a failure to attend school complaint in Juvenile Court. Pursuant to a settlement agreement, the student attended Mercy Centre from February 2011 until December 2012.
In the initial months at Mercy Centre, the student showed marked improvement. The parents refused to send the student to Mercy Centre over the summer. The student had significantly regressed when she returned to Mercy Centre in the fall 2012. Her aggressions had increased in frequency and intensity. The student would charge at staff, tackle them, pull their hair and ferociously bite them. Mercy Centre took numerous steps to address the behaviors. Staff with long hair put their hair in ponytails; staff stayed on their feet around the student to be able to react to student’s aggressions; and they wore heavy sweatshirts and denim jackets to protect themselves from the student’s biting. Mercy Centre engaged the services of an outside expert to conduct an FBA. Through daily communication logs and other means, the parent was fully aware of the student’s behaviors.
The student population at Mercy Centre includes medically fragile children. Several incidents occurred during one day in December 2012 which precipitated Mercy Centre suspending and then seeking to terminate the student. The student latched on to a teacher’s hair and thrashed the teacher’s head back and forth, resulting in the teacher’s hospitalization. The student also attacked another student, ultimately pulling two fistfuls of hair from the other student’s head. Significantly, this was only the third time in twenty years that Mercy Centre had suspended a student. Mercy Centre thereafter stated that it was terminating the student’s placement.
The ability of a private special education school to suspend or terminate a student is proscribed by state regulations. 603 CMR 18.05 and 603 CMR 28.09(12) require the private school, among other things, to notify the parents and the responsible school district about serious incidents, and allow the district to assume responsibility and hold a team meeting. Since Mercy Centre comported with all the requirements, there was no viable claim against Mercy Centre for any relief.
Brockton immediately took responsibility for the student and sought permission to send packets to other programs. The parents failed to attend team meetings about the student. With some uncertainty about whether the parents had given consent for referral packets to go, Brockton sent redacted packets to numerous potential placements. While several placements rejected the student, two well-established programs indicated they would likely admit the student after a more formal admission process. Ultimately, without the requested participation of the parents, Brockton offered a comprehensive IEP with a private day placement. Even when the parents failed to respond to this IEP, Brockton offered home tutoring in the interim. In light of the extensive efforts of Brockton to offer a program and services to the student and the parents’ refusal to participate or cooperate in that effort, no claim lay against Brockton for compensatory or other services. The hearing officer ultimately held that proffered IEP provided FAPE.
Transition – Compensatory Services Are Denied for a 22 Year Old Student while Increased, but Unspecified, Transition Services are Ordered for a Student with Significant Disabilities
The two transition cases this quarter, Nauset Regional School District and Massachusetts Department of Developmental Services, BSEA #1300562, 19 MSER 152 (2013), and Quincy Public Schools, BSEA #1301349, 19 MSER 166 (2013), add to the ever growing case law about the obligations of school districts in providing appropriate transition services.
Nauset Regional School District and Massachusetts Department of Developmental Services, BSEA #1300562, 19 MSER 152 (2013), (Crane) involved a 20 year old student with multiple and profound disabilities. She has a relatively unique constellation of disabilities including partial unbalanced translocation syndrome of the 7th and 9th chromosomes and dysplastic corpus callosum. The student is completely non-verbal and has global developmental delays and a seizure disorder. She required assistance with mobility, communication, and activities of daily living like toileting and eating.
She had been attending a substantially separate program at Nauset Regional High School and her program had remained essentially the same for the five years there. The parents sought a residential placement while Nauset proposed a continuation of their program. The case centered around what progress was to be expected and in what areas, given the student’s profound and unique disabilities. The ultimate questions for the hearing officer were whether the anticipated continuation of this overall rate of progress was legally sufficient and what the student’s potential was to make substantially greater progress.
The hearing officer undertook a detailed analysis of what progress had occurred, however slight, over the years in her current program. The student was able to walk for longer distances and with greater independence. This was significant because it allowed her to participate in more activities. She drooled less, which facilitated her increased ability to socialize with other students. Successful and sustained efforts to stretch her hamstrings allowed her to almost stand erect. She made progress in self-feeding and some in toilet training. She had become less agitated and resistant, exhibited some ability to choose preferred activities and made gains in her receptive language.
The school district conceded that it had not done formal transition assessments of the student. Applying the principle of “no harm, no foul”, the hearing officer found this of no consequence since the student was not appropriate for formal assessments and the district had informally assessed her through observations.
The hearing officer then addressed the question of whether the student had the potential to make substantially greater progress. The parents’ expert’s opinion in this regard was held not credible because she had no experience with the student’s particular disabilities and had not evaluated the student. Her opinion was based upon earlier evaluations by others and her own observation of the student. The hearing officer was careful to note that few, if any, experts would have experience with the student’s unique disabilities and most formal test instruments would not be valid for this student.
The parents’ expert relied heavily on a particular component of a 2010 speech language evaluation. That evaluation placed her receptive language skills at a 20-27 month old level. That skill was the key, in the expert’s opinion, in assessing the true ability of a student to learn. With 20-27 month old skill levels, the student could have and would be expected to make significantly more progress.
The hearing officer did not reject this theory about whether receptive language was a true predictor of the student’s learning potential, but did find invalid the factual underpinnings of the expert’s opinion: that the student’s receptive language skills were at a 20-27 month level. Witnesses at hearing who were working with student could not establish that the student even understood a single word. The best estimate of the student’s receptive language skills was at a level of 12 months or below. Therefore, the parents’ expert’s opinion of reasonable expectations for the student’s progress were invalid.
Similarly, the expert was not credible in making a case for residential placement. While she identified failings in the district’s program, that did not establish the case for residential. In addition, if a case was made for the need for services beyond the school day, it was not shown why these could not be provided in the form of home services.
While rejecting the parents’ claim for a residential program, the hearing officer did find the current program inadequate. The district must begin providing services focusing on preparing the student for what she would transition to at 22 years old: such as living in a group home and attending a day program. The district was instructed to improve its program by including such things as community outings, and to better train and supervise those instructing the student.
Quincy Public Schools, BSEA #1301349, 19 MSER 166 (2013) (Berman) involved a compensatory claim for transition services for a student who had turned 22 years old several months before the hearing. The student has an intellectual disability and autism with related significant social, language and communication deficits. He also has strong talents in art and computers. The district had acceded to the parents’ request that the student’s program shift from the successful mainstream academic course to a vocational program. Pursuant to a fully accepted May 2010 IEP, student began attending the vocational training center of South Coast Educational Collaborative. The student began there in September 2010. The parents partially rejected the IEP in November 2010 but the dispute over the IEP was resolved in May 2011. The IEP provided for significant vocational services, including a job coach and a 1:1 aide.
The student had success in some of his jobs and when those ended, the district worked diligently to locate other, appropriate job opportunities. With some gaps, the programs were largely successful. Since there was no evidence at hearing that the district could or should have done anything else in providing services to the student, the claim for compensatory services was denied.
Parents Prevail in Their Claim for Reimbursement for a Non-Chapter 766 Approved Program
The parents in Westport Community Schools and Jed, BSEA #1302922, 19 MSER 106 (2013) (Oliver) unilaterally placed their child in a non-Chapter 766 approved school, Middlebridge School in Narragansett, Rhode Island. Middlebridge is an ungraded, co-educational boarding and day school that services students with a variety of learning disabilities who also have average to above average cognitive potential and do not have significant behavioral issues. The student was a 16 year old boy with ADHD, obsessive compulsive disorder, Tourette’s syndrome, learning disabilities, and anxiety. In examining the student’s progress in Westport’s programs, the hearing officer found results that were “highly significant and quite disturbing.” Over the course of three years of Westport special education services, the WISC-IV showed that his verbal comprehension scores remained the same, his perceptual reasoning scores dropped 24 points, his working memory scores dropped 7 points and his full scale IQ dropped 24 points! The WJ-III achievement tests were equally alarming: the student went from being 1 year below age and grade levels to 3-4 years below grade level.
For high school, Westport proposed placement in a purported language based program. However, Westport conceded that this was not a special education program. In addition, Westport proposed a reduction of services for the student by offering language based services in two subjects for 10th grade while they had offered it for four subjects in 9th grade.
Westport’s IEPs were clearly inadequate. The next inquiry was therefore the appropriateness of Middlebridge as a placement and the right for reimbursement. Unlike a claim for prospective placement, the non-approved status of Middlebridge did not impinge the parents’ rights for reimbursement. The Supreme Court has definitively stated in Carter By & Through Carter v. Florence County School District Four, 950 F.2d 156 (4th Cir. 1991), affirmed 510 U.S. 7 (1993) (“Florence County”), that parents are entitled to reimbursement for a unilateral placement even in a program not approved by the state educational authority. Parents are entitled to reimbursement if they establish both that program proposed by the school district did not provide FAPE and the parents’ school placement was reasonable.
Regarding this second prong, the hearing officer accorded substantial weight to the testing done by Middlebridge and the testimony of the student’s treating psychologist. The extensive testing established that the student had made demonstrable and substantial progress at Middlebridge.
The hearing officer commented that the student’s psychologist was a “particularly credible witness.” The psychologist was well credentialed and focused his private practice on ADHD and had been treating the student for 6 years. He testified about the student’s significant phobias and fears, and how he declined academically and emotionally towards the end of his time in the Westport schools. The psychologist testified that “we were losing [him]He was moving in a direction that made me worry about his future.” The psychologist continued to follow the student while he was at Middlebridge. The psychologist testified that there was “an absolutely dramatic and delightful change” in the student’s functioning. This included the dissipation of OCD and phobias. Buttressing his credibility was the fact that he readily conceded that his ADHD and Tourette’s continued as they would no matter what the placement. In addition, he confined his testimony to his area of expertise and did not comment upon the student’s academic functioning. He also testified that the student did not require a residential placement.
Concerning the residential placement, the hearing officer concurred with the student’s psychologist and found that the residential component was not necessary for FAPE. However, requiring the student to commute for 75 to 90 minutes would violate 603 CMR 28.06(8)(a) which prohibits a school district from requiring the student to be remain in the vehicle for more than an hour each way. The hearing officer ordered the district to reimburse the parents for entire cost of the placement at Middlebridge, including the residential component.
Parent’s Compensatory Services Claim Based Upon an Inadequate Math Program is Denied
After summary judgment eviscerated the majority of the parent’s claims, the sole remaining issue decided in Christa McAuliffe Regional Charter Public School, BSEA #1300761, 19 MSER 137 (2013) (Crane) was the appropriateness of the student’s math program two academic years earlier while at McAuliffe Charter School. At the time of the hearing, this 16 year old girl was in 9th grade at a private special education school. She had a full scale IQ of 62 and had been placed in Natick public school substantially separate programs through 5th grade. The parent thereafter desired an inclusion program for her and enrolled her in McAuliffe for 6th grade. For 7th grade, the parents, supported by their expert, pushed to have the student placed in an inclusion math class with 14-17 students. The parent paid for a 1:1 tutor who accompanied student to math class. The parents’ expert observed the student in this math class and had concerns that the material was too difficult for the student and that the student would need a substantially separate class.
The parents’ remaining claim, for compensatory services due to an inappropriate math class, was unfounded for three reasons. First, the parents’ expert testimony that her testing revealed the student did not make progress in math was undercut by the school’s expert. Specifically, the school’s expert effectively discredited the validity of the parents’ expert’s grade equivalent scores. Second, the school’s testimony and progress reports supported proof of adequate progress in math. Lastly, the expert never shared her concerns about the math class via a written report or other means with the school. The parents and their expert pushed to have the student in the inclusion math class. Therefore, at the time the IEP was being implemented, it appeared appropriate and the parent could not, with the purported benefit of hindsight, challenge the adequacy of the math class.
Procedural violations raised by the parents, such as the IEP being late or that the regular education teacher missed one follow up team meeting, were brushed aside since 20 USC § 1415(f) (3)(E)(2)(II) grants significance to procedural failings only if the violations impeded the student’s right to FAPE, significantly impeded parents’ opportunity to participate in the decision making process, or caused a deprivation of educational benefits. Since none of these consequences were present, the procedural violations were insignificant.
Student in a DYS Facility Fails to Establish His Right To Transportation Reimbursement
The notion of litigation begetting litigation finds no better support than in the history of the parties in Brockton Public Schools, BSEA #1301082, 19 MSER 121 (2013) (Figueroa). This decision was another in a long line of decisions arising out of disputes between the family, Brockton Public Schools and the Department of Youth Services (“DYS”). In this action, the parent raised a number of claims, including that Brockton failed to provide transportation for home visits, failed to communicate about student’s behavior, improperly failed to conduct an FBA, and failed to convene a team to address behavioral issues.
The then 19 year old student has Bipolar Disorder, Post Traumatic Stress Disorder, anxiety, depression, ADHD and learning disabilities. He was committed to DYS until his 21st birthday. The parent and DYS agreed to place the student at the Eagleton School. Brockton was not involved in this decision but agreed to cost share the day portion of the placement at Eagleton. The relevant IEP stated that no transportation was required. The student was placed there pursuant to a “GCL” – grant of conditional liberties agreement – which was essentially a contract between DYS and the student.
Initially the student did well. However, his behavior deteriorated and he violated the GCL by such acts as associating with known gang members while on home visits. Eventually, he was terminated from Eagleton for assaulting another student. In response, Brockton agreed to send referral packets out immediately. After a few days at a new placement, the student ran away and was eventually incarcerated at the Plymouth House of Correction where he was at the time of the hearing. Concerning transportation home, Brockton was not responsible for reimbursing the parents because the IEP did not obligate the district to provide transportation. In addition, Brockton had no input into when the student would be allowed home visits. The claim of lack of communication was belied by the evidence of constant communication between Eagleton and the parent. An FBA was unnecessary given the focus of Eagleton’s program. Lastly, Brockton’s actions in reconvening the team and developing an alternative program were appropriate because the district followed the proper procedures and offered FAPE.